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Full text of "Cobbett's complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time ... from the ninth year of the reign of King Henry, the Second, A.D. 1163, to ... [George IV, A.D. 1820]"

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From  the  yarboc  Library 


lEUini-SIAIIiflRDaVNKHtVtgVERSnY 


y 


■•-^ 


State    Trials. 


VOL.  XX. 


COMPLETE    COLLECTION 


•  •!.•»  «       •?  J    r, 


•  «  s  •  a  a  « 


.  •  --.  .  ^ .  •  .-OF  :  •  •  •     •     -  -•  :  !• 


State 


AND 


PROCEEDINGS   FOR   HIGH   TREASON   AND   01 

CRIMES  AND  MISDEMEANORS 


FROM  THE 


EARLIEST  PERIOD  TO  THE  PRESENT  tiME, 


WITH  XOTES  AKD  OTHER  ILLUSTRATIO 

COMPILED  BY 

T.  B.  HOWELL,  Esq.  F.R.S.  P.S.A. 


VOL.  XX. 

A.D.  1771—1777. 


LONDON: 

PRINTED  BY  T.  C.  HANSARD,  PETERBOROUGH-COURT,  FLEET-STREET : 

FORU)NOMAN,  HUROT,  REE8,  ORME,  &  BROWN;  J.RICHARDSON;  BLACK, 
PARRY,  &  CO.;  £.  JEFFERY  ;  J.  HATCHARD;  £.  LLOYD;  BUDD  6i 
CALKIN;  J.  FAULDER;  J.  BOOKER;  CRADOCK  &  JOY;  R.  H.  EYANi; 
J.  BOOTH ;  AND  T.  C.  HANSARD. 

1814. 


*  •  • 


t'^'-.^.-v^ 


.^iL 


ADVERTISEMENT, 


IN  this  Volume  the  Cases  reported  in  the  last  FoUo  Mdiiion 
rftke  State  Trials  are  brought  to  a  termination;  the  Case 
•/  Home,  p.  651^  being  the  last  contained  in  that  Collection. 
After  which  commences  the  New  Series  of  Proceedings,  con^ 
Hmung  that  Edition  to  the  present  time. 

In  order  to  render  the  present  Work  more  applicable  to 
Hme  Law  Books  in  which  references  are  made  to  the  FoUq 
MUkm,  a  Table  of  Paralisl  Hmfhrmkcm,  exhibiting  at 
jtrtl  nght  the  Pages  in  the  present  Edition  corresponding 
wilk  those  of  the  Folio  (fries,  is  now  in  compilation,  and  will  be 
fublished  wUh  the  next  Volume. 

Fm.  1814. 


»-.      •      « 


TABLE   OF  CONTENTS 


•  •      • 


TO 

VOLUME  XX. 


^u 


REIGN  OP  KING  GEORGE  THE  THIRD. 

i&.  The  Case  of  JAMES  SOMMERSETT,  a  Negro,  on  a  Habeas 

Corpus,  A.  D.  1771-1772    1 

Addenda  to  this  Case  • «  1369 

H9.  Proceedings  in  an  Action  by  Mr.  ANTHONY  FABRIQAS,  against 
Lieutenant-General  MOSTYN,  Governor  of  Minorca,  for  False 
Imprisonment  afad  Banishment,  a.  d.  1773-1774 » 88 

KO.  The  Case  of  the  Inland  of  Grenada ;  in  relation  to  the  Pajrment  of 
Four  and  one-half  in  the  Hundred  of  Goods  exported  therefrom ; 
between  ALEXANDER  CAMPBELL,  esq.  Plaintiff,  and  WIL- 
LIAM HALL,  esq.  Defendant,  a.d.  1774 239 

Addenda  to  this  Case  •; 1387 

Sbl.  The  Trial  of  ELIZABETH,  calling  herself  Duchess  Dowager  of 

KINGSTON,  for  Bigamy,  a.  d.  177(S 355 

SS2.   Proceedings  against  JOHN  HORNE,  Clerk,  on  an  Information  in 

the  King  6-Bench  by  the  Attorney-General,  for  a  Libel,  a.  d.  1777    651 

Addenda  to  this  Case  • • 13S9 

*«*  This  is  ike  concluding  Article  of  the  Folio  Edition. 


COMMENCEMENT  OF  THE  NEW- SERIES. 

Si  The  Trial  of  JOHN  ALMON,  Bookseller,  upon  an  Information, 
filed  Ex-Officio,  by  William  De  Grey,  esq.  his  Majesty's  Attor- 
ney-General, for  selling  Junius's  Letter  to  the  King,  a.  d.  1770...     803 

5M.  The  Trial  of  JOHN  MILLER,  Printer,  before  Lord  Mansfield, 
and  a  Special  Jury  of  Citizens  of  London,  at  Guildhall,  for  re- 
prioting  Junius's  Letter  to  the  King,  in  the  London  Evening  Post, 
of  the  19th  of  December,  1769,  a.  d.  1770 870 


TABLE  OF  CONTENTS. 

Page 
Kb.    The  Caie  of  HENRY  SAMPSON  WOODFAIX,^  an  InTor- 

matioD,  filed  bj  the  Attomej-General,  for  publishiiig  Junius'i 

Letter  to  the  King,  ▲.  d.  1770 895 

Sb6.    The  Trial  of  Maha  Rajah  NUNDOCOMAR,  Bahader,  for  Forgery. 

At  Calcutta,  in  the  Fkrovince  of  Bengal,  a.  d.  1775 • 9M 

567.  The  Trial  of  JOSEPH  FOWKE,  FRANCIS  FOWKE,  Maha 
lajrfi  NUNDOCOMAB,  aad  ROT  lADA  CHURN,  for  a 
Conspin^  against  Warren  Hastings,  esq.  Governor-General  of 
die  Presidency  of  Fort  ^TtHliam  in  BengaL  At  Calcutta  or  Fort 
William  in  Bengal  aforesaid,  a.  d.  1775  • •  1078 

.£58.  The  Trial  of  JOSEPH  FOWKE,  Maha  Rajah  NUNDOCOMAR, 
and  ROT  RADA  CHURN,  for  a  Conspiracy  agakist  Richard 
Barwell,  esq.  one  of  the  MenAers  of  the  Simreme  Council  for  the 
Province  of  UengaL  At  Calcutta  or  Fort  Wi&iam,  in  Bengal 
afinesaid,  a.  d.  1775 1186 


fl59.  The  Trials  on  the  Informations  whidb,  in  punuance  of  an  Order  of 
the  House  of  Commons,  were  filed  by  his  M^esty's  Attorney 
General  against  RICHARD  SMITH  and  THOMAS  BRAND 
HOLLIS,  esqrs.  for  .having  been  (haSlij  of  notorioas  Bribery,  .  ** 
and  thereby  procuring  themselves  to  be  elected  and  returned 
Burgesses  to  serve  in  Pariiament  for  the  Borough  of  Rindon, 
A.  D.  1776    .• 1288  ; 

• 

MO.  The  Trial  of  ao  ActiM  brought  by  STEPHEN  S AYRE»  esq. 
against  the  Right  Hon.  WILLIAM  HENRT  Earl  of  ROCH- 
FORD,  one  of  his  Majesty's  most  Hon.  Privy  Council,  and 
tberetofoie  one  of  hn  Majea^'s  Princ^al  Seeretaries  of  State,  for 
False  Imprisonment,  a.o.  1776.«. 1286 

661.  The  Trial  of  JAMES  HILL,  otherwise  JAMES  HINDE,  other- 
wise  JAMES  ACTZEN  or  AITKEN,  (known  also  by  the 
name  of  John  the  Painter)  for  feloniously,  wilfully,  and  malici« 
ously  setting  Fire  to  the  Rope  House  in  hn  Majesty's  Dock  Yard 
at  Portsmouth,  A.  D.  1777  «.....••...• ^..... 1318 


■  \ 


A     COMPLETE    COLLECTION 

OF 

STATE     TRIALS, 


548.  The  Case  of  Jahes  Somhersctt,  a  Negro,  on   a  Habeas 
Corpus,*  KingVBench :  12  Geouge  III.  a.  d.  1771-72. 


Of  thia  Gate  only  a  Statement  of  the  Pacts, 
tnd  Mr.  HBi^nve's  learned  Argmnent  wen 
inMTted  ID  the  former  edition  of  tkis  Work. 
1  biTe  here  added  the  olber  Aigumeola,  aad 
lilt  Jud^meut  of  the  Court,  from  Lofffa  Re- 
perls,  m  which  is  a  Note  of  the  Case  noder 
thcnameof  Sammenett  againat  Stewarl. 

0>  ibe  3il  of  December  1771,  nffidtTils  were 
muk  k/  Thomaa  Walkhn,  Elizabeth  Cade, 

„...._   M__i_._.     .1...    I a ^    J 


*  The  TCT7  important  (natters  which  thii 
OB  iarolTcd,  Tiz.  fir»t,  The  rigbia  over  the 
pnM  «f  K  negro  reaident  here,  claimed  by 
MMitr  penioo  aa  the  owner  of  the  negro  ; 
iW.  n|jpo9ing  such  righta  to  e)Uat,  aecoDilly, 
Tie  uicnt  of  tbem ;  and  thirdly.  The  meaua 
•f  mfarcing'  tbem,  were.  1  belieTs,  nerer,  ex- 
apt  in  this  ea»e,  made  tile  lubjecl  of  a  luit  at 
hw  in  England.  But  in  Scotland  two  caaa 
of  ihi*  tort  have  occurred  before  the  Court  ol 
Kmiod  ;  1,  That  of  Sheildani^aioit  Sbeddtn, 
•  a.  IT&6  ;  3,  That  of  Knight  agwnat  Wed- 
4(tli'nni,  a.  D.  177S— 1778. 

or  these  two  cases  the  followlne  reports  are 
fnnied  from  the  >  Dictiooary  of  Decisions,'  lit. 
'  aare,'  *oI.  33,  pp.  14,545,  e(  itq.  : 


"  *  NecTO,  who  hail  been  boaght  in  \ 
fiaia,  anil  brought  to  Britain  to  be  tauelit  * 
trtde,  anit  who  liad  been  baptized  in  Britain, 
biiinif  rUimnl  his  liberty,  againit  his  master 
Rqben  Slitd'lan,  who  had  put  him  on  board  a 
itiip,  to  carry  hioiback  to  Virginia,  llif  Liirds 
a^'pniain)  counsel  for  t\x  negfto,  and  ordered 
BKrnorials,  and  afterwarila  a  hearin);  in  pre 
■vriKc,  upon  the  refpeclive  cluima  of  liberty 
aul  >eriitude  by  the  master  and  Ibe  negro. 

>■  But,  durintc  the  hearing  in  presence,  the 
•q[ra  died ;  *o  the  point  wu  not  dgteriniiied." 
VOL.  3U. 


mander,  lyi    , 

Jamaica ;  and  lord  Manstield,aD  an  apphcation 

supported  by  these  sfiidavits,  allowed  a  wrilr 

iif  Habeas  Corpot,  direoteil  to  Mr.  Knowlea, 

sod  re<]uiring  bim  to  return  (be  body  of  8om- 

■nenyett  before  his  lotdsbip,  witii  the  cause  of 

itetainer. 

Mr.  Rnowlea  on  the  9th  of  December  pro- 
Jnced  the  body  of  Sommeraett  before  lord 
MansQeld,  and  relumed  for  caase  of  detainer, 
ihat  Sommersett  was  the  negro  slate  of  Char 


ihat  Sommersett  was  the  n^o  slaf  t 
SteuBTt,  esq.  who  bad  dehrered  E 


"  Tlie  conimaoder  of  a  Tcssrt,  in  the  African 
trade,  baring  ini|iorted  a  cargo  of  negroes  into 
Jamaica,  sold  Joseph  Knight,  one  of  tlieoa,  aa 
a  slave,  to  Mr.  Wedderbum.  Kuight  was 
then  a  boy,  seemingly  about  twelve  or  tbirleea 
years  of  age. 

"  Some  time  after,  Mr.  Wedderbum  came 
orer  to  Scotland,  and  brought  (his  negro  aloi^ 
will)  liio),  as  a  personal  serrant. 

"  The  negro  continued  to  serf  e  bim  for  seve- 
ral years,  without  murmuring,  and  married  ia 
the  cDuolry.  But,  afteinardi,  prompted  to  as- 
sert bis  freedom,  he  look  the  resolution  of 
(earing  Mr,  Wedtlrrburo's  service,  who,  being 
inlbrmed  of  it,  got  biih  apprehended,  on  a  war- 
rant  of  Ibe  Justices  of  pe:ice.  Knight,  un  hia 
eiaminaliuD,  acknowledged  bis  puipose.  The 
juBlici|f»Hbund  '  the  petitioner  entitled  (a 
.'■Amglii's  services,  and. iliat  he  must  continiM 
'  as  before.' 

■<  Knigiit  then  appticd  to  the  sheriff  of  ilie 
county,  (Perthshire),  by  jietilion,  selling  forth, 

■  Tbst  Mr.  Wedderburn  iuuistcd  on  bis  con- 

■  tinning  a  personal  serranl  with  him,'  iind 
prayed  the  sheriff  lo  And,  '  Tbnl  he  cannot  bo 

....  11. ^f  slavery,  or  compelled 

i  and  lo  discbarge  Mr. 
yelitiifpfr 


3] 


12  GEORGE  III. 


The  Negro  Case. 


[4 


into  Nr.  Koowlcs's  custody,  in  order  to  carry    firtnia,  and  had  afterwards  brooght  him  into 
bim  to  Jamaica,  and  there  sell  him  as  a  slave.  !  Eng^land,  whfre  he  left  bis  master's  service; 


Affidavits  were  also  made  by  Sir.  Steuart  and  j  and  that  his  refusinfif  to  return,  was  the 

two  other  {rentlemen,  to  prove  that  Mr.  Stenart  j  sion  of  his  beings  carried  onboard  Hr.  Knowlea'a 

had  purchased  Sommersett  as  a  slave  in  Vir-  ;  ship. 


**  Afler  some  procedure  in  this  process,  the  ;  in  all  the  ancient  nations,  and  in  all  the  modera 
sberiiT  found,  *  That  the  state  of  slavery  is  not    European  nations,  for  many  at^es.    In  lonie 

*  recognized  by  the  Inns  of  this  kingdom,  and  is  ( of  them  it  still  remains;  and  in  none  of  then 

*  inconsistent  with  the  principles  thi^eof ;  that  j  has  it  been  abolished  by  positive  enactments,  de- 
<  the  re^rulations  in  Jamaica,  conccrniniif  slaves,  j  clnring  it  unjust  and  iilej^al,  but  gone  into  dis- 


'  do  not  extend  to  this  kin{;^om  ;  and  repelled 
*  the  defender's  claim  to  a  perpetual  service.' 
Mr.  Wedderhurn  havin{f  reclaimed,  the  sheriff 
found,  *  That  perpetual  service,  without 
'  wa^res,  is  slavery  ;  and  therefore  adhered.* 

**  The  defender  removed  the  cause  into  the 
court  by  advocation.  The  lord  ordinary  took 
it  to  report,  npon  informations.  Beinj;  a  ques- 
tion of  general  im|M)rtance,  the  Court  ordered 
a  hearin(r  in  presence,  and  afterwards  informa- 
tions of  new,  upon  which  it  was  adiised. 

«*  Pleaded Jor  the  Master:  That  be  had  a 
right  either  to  the  perpetual  service  of  the 
negrro  in  Ibis  country,  or  to  send  him  back  to 
tbo  plantations  from  which  he  was  brought. 
His  claim  over  the  negro,  to  this  extent,  was 
argued  on  the  tbllowing  grounds : 

**  The  productions  of  the  colonies,  ever 
since  they  were  settled,  have  been  cultivated 
by  the  means  of  negro  slaves  imported  from 
the  coast  of  Africa.  The  supply  ing  the  colo- 
nies with  these  slaves  has  become  an  extensive 
trade;  without  which,  the  valuable  objects  of 
commerce,  now  furnished  by  the  plantations, 
could  not  be  cultivated.  British  statutes  have 
given  sanction  to  this  trade,  and  reco^fnized  the 
property  of  the  master  in  such  slaves ;  lOtli 
W.  3,  c.  26 ;  5th  Geo.  2,  c.  7 ;  23J  Geo. 
9,  c.  3. 

**  The  property  which,  in  Jamaica,  was  es- 
tablished m  the  master  over  the  negro,  under 


use  by  degrees,  in  consequence  of  many  difle- 
rent  causes.  Though,  therefore,  the  maniei- 
pal  law  of  this  country  does  not  now  admit  of 
this  state  of  slavery  in  the  persons  of  citiacMb 
yet,  where  for^gners,  in  that  state,  are  broogfit 
into  the  conntry ,  the  right  of  their  masters  ofW 
them  ought  not  to  lie  annihilated. 

*'  In  this  case,  the  master  is  not  insisting  §k 
the  exercise  of  any  n'cforous  |)owef8.  He  o^f. 
demands,  that  he  sbail  be  intiiled  to  the  peiso* 
nal  services  of  the  negro,  in  this  country,  dar- 
ing life.  His  right  to  this  extent,  et  lemt,  k  , 
not  immoral  or  unjust ;  nor  is  it  even  icfio- 
bated  by  the  municipal  law  of  this  coonlry. 
A  person  may  bind  himself  to  a  service  for  life; 
Ersk.  Inst,  hi!  l,t.  7,  §  62. 

"  But,  in  the  last  place,  if  this  is  denied,  Ihs    . 
master  roust,  at  least,  be  permitted  to  ooBfd 
the  negro  to  return  to  the  plantations,  firM 
whence  he  was  brought;  otherwise  he  is  ]Mf 
tirely  forfeited  of  his  right. 

"  Some  cases  from  the  English  lav-boohs    > 
were  adduced  to  show,  tbat,  in  Englsnd,  ths 
master's  right  of  property  in  his  negro  remsiH   -: 
after  be  is  brought  into  that  country ;  BaM 
contra   Penny,    1677 ;    Keble's  Rep,  p.   S| 
p.  785.     Gilfy  contra  Cleves;    5tli   WUEmi   , 
and  Mary,  lord  Unymond,  Rep.  5,  p.  I4lf%  i 
and  the  opinion  of  two  very  erament  UwyoH|  i 
in  the  year  1729,  sir  Philip  Vorke,  then  aUsi^  '^ 
ney-general,  and  !\Ir.  Talbot,  solicitor- geosral^   ;. 
in  these  words :  *  >Ve  are  of  opiniooi  that  IS  i 

*  slave,    by    coming  from   the    West-IndiiB^    ' 

*  either  with  or  nithout  his  master,  to 


these  statutes,  and  the  municipal  law  there, 
cannot  he  lost  by  a  mere  change  of  place.    On 

Erinciples  of  equity,  rights  acquiretl  under  the 
iws  of  foreign  countries  are  supported  and  I  *  Britain  or  Ireland,  doth  not  become  free ; 
inforced  by  the  courts  of  law  here.     A  right  of   *  that  his  master's  property  or  right  in  I 
property  will  be  sustained  in  every  qountry    *  not  thereby  determineil  or  varied  ;  and 
where  the  subject  of  it  may  come.    'The  status    *  tisin  doth  ni»t  bestow  freedom  on  bim, 
of  |)ersi>ns  attend  them  wherever  they  go ;  | '  make  any  altenuion  in  his  temporal  cood 
Huber,  hb.  1,  t.  3,  c.  12.  !  *  in  these  kingdoms.    U'e  are  aJso  of  oninini, 

*'  The  law  of  the  colonies  is  not  to  be  con-  |  *  that  the  master  may  legally  compel  nia  H 
sidered  as  unjust,  in  authorizing  this  coudition  '  return  to  the  plantations.' 
of  slavery.  The  statutes  which  encourage  the  "  Anstceredjhr  the  Negro :  The  only  litlaaB 
African  trade  show,  that  the  lecislature  does  which  any  right  of  dominion  is  claiioed  Ofsr 
not  look  on  it  in  that  light.  The  state  of '  this  African,  is  the  institution  of  the  roaaidpal 
slavery  is  not  contrary  to  the  law  of  nations. ,  law  of  Jamaica,  which  authoruEea  Uieslavwy 
IVriters  upon  that  law  have  enumerated  seve-  •  of  Africans  brought  into  that  island,  TJuitlr 
ral  just  and  lawful  origins  of  slavery  ;  such  as  ■  that  law,  this  negro,  a  child  when  brought  iola 
contract,  conquest  in  a  just  war,  and  punish-  ;  Jamaica,  while  he  remained  there,  was  wtk^ 
ment  of  crimes.  In  cases  where  slavery  is  au-  fjected  to  the  unjust  dominion  which  itgifcs 
thorizinl  by  the  laws  of  Jamaica,  it  must  be  pre-  !  over  these  foreigners ;  but  the  municipal  law 
snnied  to*  have  proceeded  on  a  lawful  origin,  of  the  colonies  has  no  authority  in  thb  eountryu 
The  municipal  law  of  no  country  will  be  pre-  ;  On  grounds  of  equity,  the  Coon,  in  soow 
sunied  unjust.  !  cases,  gives  eflecl  to  the  laws  of  ether  coMh 

**  A  state  of  slavery  has  been  universally  re-  '  tries ;  but  the  law  of  Jamaica,  in  this  instaKib 
Mived  in  the  practice  of  natioDS,    It  took  place   will  not  be  supported  by  the  Court ;  bscamtt 

i 


5] 


The  Negro' Case. 


A.  D.  1771. 


[6 


Laid  Mam$field  chniioff  to  refer  the  matlar 
tD  Ike  teermiiMtion  of  ttie  court  of  King's- 
bdck,  SMnmeroett  wiib  sureties  was  bi>uoci  in 
nisaiiee  for  his  appearsDce  there  on  the 
[day  of  the  next  Hilary  term  ;  and  his 

■ifyHpiPt  to  tlie  first  principles  of  morality 


•*  SabordinattoD,  to  a  certain  extent,  is  ne* 
tmmy ;  bat  there  are  certain  bounds,  beyond 
vbidif  if  any  institution,  subjecting  one  indi- 
fital  to  anolher,  should  go,  the  injustice  and 
mlity  of  It  cannot  admit  of  a  doubt, 
is  tlie  institution  of  slavery,  depriving 
of  the  most  essential  rights  that  attend 
ezisieace,  and  which  are  of  a  nature  that 
not  of  any  equivalent  to  be  ^iven  for 
ibca.  The  most  express  consent,  given  in  a 
ffdonlary  contract,  cannot  authoriie  tne  assum- 
m^  of  tliese  rights,  or  bind  the  consenting  party 
Is  sidbmit  to  the  condition  of  a  slave.  A  stipu- 
of  tbat  kind  affords  intrinsic  evidence  of 
judue  advantage  taken,  and  is  therefore 

It  to  Toid  the  contract. 
**  Bat,  although  it  were  justifiable  to  admit 
if  a  sbvery  proceeding  on  a  title  of  contract, 
t,  or  of  punishment,  the  law  of  Ja- 
would  not  be  the  less  unjust.  In  sub- 
the  Africans  to  slavery,  that  law  re- 
Mcs  no  title  under  any  of  these  grounds. 
The  drenmstancc,  that  the  negroes  are  brought 
iats  Jamaica,  is  all  that  is  requisite  to  fix  on 
IbiB  indiacrimiuately  the  condition  of  slavery. 
It  iR,  therefore,  a  slavery  established  on  force 
aad  osdrpntion  alone,  which  no  writer  on  the 
k«  of  nations  has  vindicated  as  a  justifiable 
of  slavery. 
**  If  the  law  of  Jamaica  had  made  any  dis- 
BCtisB,  or  required  any  title  to  the  slavery  of 
1  ifiian,  this  negro  would  never  have  been 
by  it  to  that  state.  Being  a  child 
he  was  brought  into  Jamaica,  he  could 
into  DO  contract,  commit  no  crime,  and 
cannot  give  a  right  to  kill  or  enslave 
cwUrcn. 

"  The  means  by  which  those  who  carried 
dlii  child  from  his  own  country  got  him  into 
Ihcir  bands,  cannot  be  known  ;  because  the 
bv  of  Jamaica  makes  no  inquiry  into  that  cir- 
coBsiance.  But,  whether  he  was  ensnared, 
ar  bought  from  his  |>areDts,  the  iniquity  is  the 
Siow. — That  a  state  of  slavery  has  been  ad - 
nitled  of  in  many  nations,  does  not  render  it 
ins  anjust.  Child -murder,  and  other  crimes 
if  a  deep  dye,  have  been  auihorlbed  by  the 
lavs  of  different  states.  Tyranny,  and  all 
sms  of  oppression,  might  be  vindicated  on  the 
Mine  grounds. — iNeiiher  can  the  advantages 
pnicured  to  this  country,  by  the  slavery  of  ihe 
Mfrues,  be  heai  kened  to,  aa  any  argument  in 
tkii  qnention,  as  to  the  justice  or  it.  Oppres- 
■Mo  and  iniquity  are  not  palliated  by  the  gain 
sodadvautage  acquired  to  theauthont  of  them. 
boi  ibe  ex|iedieucy  of  the  institution,  even  for 
Ike  subjects  of  Great  Britain,  is  much  doubted 
•f  by  those  who  are  best  acquainted  with  the 
tttta  of  the  colonies ;  and  soma  culightened 


lordship  allowed  till  that  day  for  settling  the 
form  of  the  return  to  the  Halieas  Corpus.  Ac- 
cordingly on  tbat  day  Sommersett  appeared  in 
the  court  of  King's- bench,  and  then  the  follow- 
ing return  was  read : 

men  of  modern  times  have  thought,  that  augar 
and  tobacco  might  be  cultivated  without  tht 
slavery  of  negroes. 

*'  The  dominion,  therefore,  given  by  the 
law  of  Jamaica  over  the  pui-suer,  a  foreigner 
there,  being  unjust,  can  receive  no  aid  from 
the  lawa  of  this  country.  The  modificatiun 
proposed  of  this  claim  of  alavery,  makes  no 
difierence  on  the  merits  of  the  question.  It  is 
plain,  that,  to  give  the  defender  any  right  over 
the  pursuer,  the  pobitive  law  of  Jamaica  muat 
always  be  resorted  to ;  consequently,  the  ques- 
tion recurs,  Whether  that  law  ought  to  be  en- 
forced beyond  its  territory  ?  But  a  service  for 
life,  without  wages,  is,  in  fact,  slavery.  The 
law  of  Scotland  would  not  support  a  voluntary 
contract  in  these  terms ;  and,  even  where  wages 
are  stipulated,  such  a  contract  has  been  voided 
by  the  Court ;  Allan  and  Mearns  contra  Skene 
and  Burnet,  No.  5,  p.  9454,  voce  Pactum 
lllicitum. 

'*  The  answer  was  given  to  the  other  claim, 
of  sending  the  negro  out  of  this  country,  with- 
out his  consent,  tbat  it  supposes  the  (fominion 
given  over  the  pursuer  by  the  law  of  Jamaica 
to  be  just.  The  negro  is  likewise  protected 
against  this  by  the  statute  1701,  c.  6,  which 
expressly  prohibits  the  carrying  aiiy  persons 
out  of  the  kingdom  without  their  consent. 
The  words  are  general,  and  apply  to  all  per- 
sons witlyn  the  realm. 

**  In  support  of  this  argument  for  the  negro, 
authorities  of  French  writers  were  adduced,  to 
show,  that  formerly,  by  the  lavis  of  France, 
negroes  brought  into  that  couutry  from  tlie 
plantations  became  free.  This  was  their  law, 
until  lately,  that,  by  special  edicts,  some  alter- 
ations were  made  u|H)n  it;  Denissrt,  tom.  3, 
V.  Negro.  On  the  law  of  England,  several 
cases  were  mentioned,  in  which  different 
judges  had  expressed  opinions,  that  a  negro 
coming  into  England  is  free  there ;  1  Salk. 
666,  Hmhh  contra  Brown  and  Cooper ;  Shanley 
contra  Nalvey,  in  Chancery  1762 ;  Har- 
grave's  Arg.  p.  58. 

"  But  the  late  case  of  Sommersett,  the  ne- 
gro, decided  in  the  Kin^'M-beuch,  in  the  year 
1772,  was  chiefly  relied  on,  and  said  to  be  in 
point;  at  least  upon  this  question.  Whether 
the  negro  could  be  sent  out  of  England  ? 

*'  The  Court  were  of  opinion,  that  the  do- 
minion assumed  over  thisi  negro,  under  the  law 
of  Jamaica,  being  unjust,  could  not  be  sup- 
ported in  tliis  country  to  any  extent :  that, 
therefore,  the  defender  had  no  right  to  tlie 
negro's  service  for  any  space  of  time,  nor  to 
send  him  out  of  the  country  against  his  con- 
sent :  that  the  negro  was  likewise  protected 
under  the  act  1701,  c.  6.     [The  *  Act  for  pre- 

*  venting  wrongous  imprisonment,  and  u{f:iin*(t 

*  undue  delays  in  Trials,'   more  particularly 


7] 


12  GEORGE  III. 


The  Negro  Case, 


t» 


*<  I,  Jolin  Knowleff,  cominfuider  of  the  Tessel 
calleil  the  Ann  aud  Blary  in  Uic  writ  hereunto 
annexed,  do  inust  huiubly  certify  and  return  to 
our  present  mo^t  serene  so?ereign  the  king^ ;  that 

mentiuued  l;elow]  from  being  sent  out  of  the 
country  a^aini«t  his  cousenL^The  judgmeuts 
of  the  dheriff  were  approved  of,  and  the  Court 

*  reiuiUed  tlie  cause  simpUciterJ  " 

I   have  been  favoured  i«  iili  the  use  of  six 

*  Memorials'  or  '  Informations,'  which  in  the 
course  of  these  tHo  litigations  were  delivered 
into  the  Court  of  Session.  Five  of  them  appear 
to  have  been  iirepared  by  men  of  very  high 
eminence  in  their  profession,  one  for  Sbeddan 
the  negro  by  air  David  Dairy mple,  aiWr* 
wanls  a  jnilge  with  the  title  of  lord  Hailes  ; 
two  ibr  Knight  the  negro,  by  Mr.  M'Lourin, 
aAer wards  lord  Dreghom,  andMr.Maconochie, 
now  lord  Mcadonbank,  and  two  for  Wedder- 
burn  (Knight's  maj*ter),  by  Mr.  Ferguson,  af- 
terwards lord  Pitfonr,  and  Mr.  Cnllen,  after- 
wards lord  Culleo,  res|)ective)y  :  they  display 
a  copiousness  and  variety  of  curious  learning, 
ingenious  reasoning,  and  acute  argumentation, 
intimately  connected  with  the  case  now  be* 
fore  us. 

With  respect  to  <  Memorials'  or  *  Informa- 
tions,' in  causes  depending  in  the  Court  of  Ses- 
sion, aud  to  the  general  course  of  proceeding 
in  that  court,  see  the  Edinburgh  Review  for 
January  J 807.  For  the  alterations  which  in 
the  vear  1808  were  made  in  the  constitution 
of  that  court,  see  stat.  48  G.  3.  c.  151. 

Mr.  Barrington,  in  his  Observations  on  stat.  1 
fitch.  2,  (note  [j/]  in  the  third  edition)  mentioned 
tliat  ''many  of  the  labourers  in  the  salt- works 
and  collieries  in  Scotland  still  continue  *  glebce 
adscriptitii'  and  cannot  be  hired  without  the  pro- 
prietor's consent."  And  as  to  this  he  referred  to 
a  case  in  the  Dictionary  of  Decisions,  vol.  1, 
I).  812.  I  know  not  what  case  that  was.  In 
Morison*s  Dictionary  of  Decisions  there  are 
under  title  Coalier  twelve  cases,  in  all  of  which 
the  Ber\  ile  condition  of  the  class  is  recognised. 

In  the  Memorials  which  were  presented  in 
the  case  of  Knight  v.  Wcdderburn,  tho  con- 
dition of  the  coalliers  and  suiters  of  Scotland 
was  considered.  1  will  here  insert  w  hat  was 
said  of  it  by  lord  Me.aduwbank  and  lord  Pitfour. 

*'  The  defender,"  observed  the  first  of  those 
learned  persons,  **  has  mentioned  the  situation 
of  coalliers  and  salteiti  as  an  evidence,  that  the 
law  of  Scotland  is  not  repugnant  to  slavery. 
It  has  bren  already  shown,  that  although  vil- 
lenage  still  existed,  although  this  high  court 
would  even  now  record  an  acknowledgment  of 
vtlicnage,  and  alihon^h  other  kinds  of  slavery 
were  adopted  by  the*  laws  of  this  country,  yet 
that  the  common  taw  could  not  be  understood 
to  favour  the  defender's  claim.  As  long  as  the 
common  law  acknowledges  the  law  of  nature  to 
be  its  great  principal  and  rule,  so  long  must  it 
reject  a  claim  to  a  right  of  property  iu  a  man, 
or  in  his  labour  and  industry,  founded  iu  his 
being  born  of  a  captivt  or  a  criminali  or  in  hit 


at  the  time  herein  after-mentioned  of  bringing 
the  said  J  ameaSomoiersett  from  Africa,  and  long 
before,  there*wrcre,  and  from  thence  hitherto 
there  have  been,  and  still  are  great  nambera  ^ 

being  seized  on  violently  by  a  third  person,  and 
sold  to  the  claimant,  it  has,  hqwever,  been 
urged,  that  coalliers  and  salters  arc  living  prooiii 
of  the  former  prevalence  of  villenage :  it  is, 
therefore,  not  unnecessary  to  bestow  a  ftew  oIh 
servations  on  their  situation ;  the  use  of  pit- 
coal  is  of  so  late  invention  that  villenage  must, 
at  any  rate,  have  disappeared  in  Scotland  long 
before  the  working  of  coal  could  have  become 
a  profession.  Purehas  (in  vol.  3,  p.  88,  of  hit 
collection)  giving  an  account  of  Marco  Paolo's 
travels,  has  the  follow  lug  curious  passage  ex- 
tracted from  them :    *  Throughout  the  whole 

*  province   of  Katai   (China),  certain    black 

*  stones  are  digged  out  of  the  mountains, 
'  which,  j)ut  into  the  fire,  burn  like  wood,  and 
'  being  kmdied,  preserve  fire  a  long  time :  aa 

*  if  they  be  kindled  in  the  evening,  they  keep 

*  quick  fire  all  the  night ;  and  many  use  thoae 

*  atones,  because,  that  though  they  have  store 
*•  of  wood  yet  there  is  such  frequent  uae  of 

*  stones  and  leathes  thrice  every  week  that  the 

*  wood  would  not  serve.'  The  same  observa- 
tion is  transcribed  into  the  Histoire  G^n^alede  * 
Voyages,  torn.  9,  p.  366.  It  was  one  of  the 
circumstances,  which,  at  the  publication  of 
Paolo's  travels,  was  considered  as  a  proof  that 
they  were  fabulous.  There  is  a  passage  in 
JEneas  Sylvius'  (afterwards  Pius  3.)  account  of 
Europe,  which  shows  more  directly,  that  the 
use  of  pit-coal  must  have  been  very  rare  and 
very  inconsiderable  in  his  time  even  in  Soot- 
land.  Treating  of  Scothind,  he  observes,  that 
he  was  here  (as  a  iegnte)  in  the  time  of  Ja- 
cobus quadratus,  and  enquired  about  a  roira« 
culous  tree,  which  had  been  said  to  grow  in 
Scotland :  He  adds,  *  De  qn&  re  cum  audivimua 

*  investigaremus  [soinorig.]didicimusmiracula 
'  semper  remotiiis  fugere,famoiiamquearboreu 

<  non  in  S(M>tift,  sedT  apud   Orcades  inveniris 

*  Illud  tamen  in  Scotid  miraculum  represen- 
'  tatum  est ;  nam  pauperea  pen^  uudoa  ad 
'  tempb  mendicantes  acceptis  lapidibuseleemo- 

*  syniB  gratis  datis  latos  abiisse  conspeximus : 

*  id  genus   lapidis,  sive  sulphured  sive  ali4 

<  pingui  materia,  pro  ligno,  quo  regie  nuda  est, 

*  comburitur.'  it  is  plain,  from  this  account,  thai 
coals  muat  have  been  ifery  rare  iu  Scotland. 
It  otherwise  would  have  k!een  quite  absurd  to 
take  notice  of  them  only  as  used  by  beggara, 
Beskles,  he  observes,  that  they  were  only  used 
wliere  the  country  was  barren  of  wood ;  and 
it  is  well  known,  that  Scotland  was,  durincf 
the  reigns  of  the  Jameses,  very  much  covered 
with  it ;  so  there  could  be  very  little  occasion 
for  coals.  On  the  other  hand,  as  there  are  re- 
gular records  extant,  from  the  days  of  James 
1,  it  is  impossible  that  villenage  could  then 
have  existed,  without  sufficient  evidence  con* 
cerning  it  appearing  in  the  acta  of  parliaroentv 
charters,  transfers  of  prapertv,  and  various 
deeds  anxNig  indivklMisy  vkisk  ate  bawM 


•'  Xhe  Nfgro  Case. 

.^  kitM  m  A/ru-a  i  aoj  that  (luring  all  ihe 
^A  ft.-- .ii'l  Xbtif  hvlli  been,  hikI  slill  is  • 
tn«  .rt.-'l  <m  ky  bU  mijttiy's  Bubjeuls, 
|r<a*>^   !•  bu  tuBJeity'i  colonies  or  phtii- 

* u iH  lilt  ihenrur* plain, (bat  llie  pfii* 
pm  J  iiijlliias  tliiJ  uul  comiueiKe  curly 
«^  lo  lute  M:cei*e<l  tlie  rviuuiiia  of  tl>'e 
W9  nileiiis.  Tl>e  cireurosliiiCffs  of  a  coal  • 
•  4**«c  iuilicatc  a  virjr  tlitTerrnt  oiigin. 
*(^tfvn  >c*>  ihM  liura  adttriptiSii.  A  coal 
to*«a  profeaaion  whicti  iaTuliialarily  eni- 
Ihs^  u>J.  Iikr  oilier  priHviiitiuna,  is  regulilcil 
lf)*r«coUT  laira.  Hbicli  we  more  Or  leu 
*M.  anxiliD^  AS  It"-  iolerra  ut'  the  public 
a^^t  III rv(i>ire.  TlivMatjeaofa  coallicr. 
•iMh  uI  lalmurera  in  any  ollirr  (irolvsginii, 
.jaij  iu  Duurif  excluKvf!,  aie  liightr  ihiin 
:3ia  i>iirL.iiien  receive,  lit  arqiiirei  pro- 
-T-,  Hd  irMDstnita  it;  wid  bas  lt(«D  tbuiid, 
-  «  E»c  of  RutherglM,  (l->L-iilea  SO  Fe- 
ksfj  If*7,  iniiileil,  as  well  %s  toy  oilier 
ll^«.(al<B>  coansellir  ol  a  burgli ;  Uv  mim, 
i*  i^ul  rratun.  be  capable  ol'  being  rieulcil 
■1^  or  parliament.  Thesi>  purtiuulars 
bwai  ctiilmcp,  ilial  tite  condition  uf  a 
I  ■«  )>ertecdy  di&renl  I'roni  tliHl  of  a  >il- 
Tlir  art  ol  wurltilig  coal  auccesst'nlty 
9  iitnig  practice  lo  allaio,  and  is  tirriu- 
Ibe  bcaUb  ul'  tliute  wlio  lire  Dot  early 
It  WM,  iberefure,  extremely 
works  ttcie  beuun  to  lie  set 
lb«  pniprwiiin  UioulJ,  in  return 
_  ^.  waives  ilifv  gave  ihe  workuien, 
Hlfa>  boiuiil  to  continue  iu  their  ser«ice 
^it^rte""  «l' y»'»rs,  or  forlite)  accord- 
^•eBiid,  tlial  it  was  at  fir«l  ciiatomary  to 
%vli  bouilft  fi'om  coallien ;  Htiil,  it  it 
h^tttsi  tlie  practice  coniinued  arier  tbe  in- 
^Mn  of   parhaiueni  bad  ■upeneiled  tbe 

'IhBe'ilNKTvalians.tbe^urtuerliiimbly  up- 
M«i)t>,  (iifficicitU^  uxpUiu  any  ibiujf  parii- 
nriB  ibotaieol  ooallirra.  la  tbe  iiifuncy 
*^ni<nticnl  inifli  are  apt  tu  ailiipl  expe- 
na  lar  inawHifc  tbe  obtlruciinos  it  meets 
^  -  '  oiUrt  Mils  «bicli  lliry  IVfI,  but  tbe 
L  aBcLiual  rcmediti  uf  wlucli  ibey  itu 
~  '  '  I'bui  inewpurations  and 
oux  lituii,  and  uu  ib«  wlier, 
Ml  tbp  airiulieni  cif  incorpomliont 
'  lis  liue  (uij^nated,  In  ibe 
.  tery  natural  lo  seek  a  curb 
orrapiiciouonessof  coalliam, 
kiaU  uaifM,  like  ibnw:  uf  many  other 
I  af  tioHiiueii,  disposed  ibem  m  idlfnera, 
-  ^i,  «v  affiicaui^e.  AH  rettuliiiuos,  huw- 
-.  Irwmd  wiiit  such  liews,  are  Btideiitly 
^iWTvial,  aail  uever  can  be  construed  na 
T  hraahng  liberty  ur  ulavery.  any  more 
tbe  •<•  uf  iiavij^atiuni  or  any  otbcr  lbloi[ 
'  jc  laaw  iMIura.  It  Diii;bl  Iw  pruvd,  ibal 
«a»  a  tlitf  n  iiiii  ihe  same  princi|ile 
.     The  acts  163T,  c.  61,  and  I&ST, 


M  IIm  Mher,  iIm  ci 


nibe  ' 


n  pleBjtn  W  in 


A.  D.  1771.  HO 

(UionlDrVirg-inin  and  Jamaica  in  America,  aoil 
Otber  coloiiJM  ■ml  planiativns  belongint;  lo  bis 
iiiajpsly  in  Aiiierit:a,  for  ibe  ueccaMry  aupply- 
in|r  ot'ihealiircsaid  colonies  suil  plaataliooa  witk 


(lalul«s  wvie ever  urijed as itittiiulit* of  ilaTvry, 
TliF  same  obw rtalioa*  are  in  ijvneral  so  appb- 
c~ble  lo  tlie  Mule  of  sullen,  liul  ii  is  uuneccs- 
sarv  to  consider  il." 

On  Uie  pail  of  tbe  defecder  it  wot  arened  lijr 
Mr.  Fer|[Uiaii  (lord  Pit  four,)  "  Tliere  still  exists 
in  this  country  h  species  of  periwiuil  serritude, 
(irxbably  llie  reuiaiiiH  of  the  oriuiiml  '  aiiscrip- 
'  lilii  glebte,'  ur  villeins,  wbiah  is  supparle<l  by 
Inle  sialuies,  nuil  by  daily  pmclice.  via.  TbM 
which  takes  pluce  with  regard  lo  the  caallier* 
and  sailer*,  where,  from  the  »iii((le  cireuin- 
siance  of  enlerini;  to  work  afier  puberly,  tliej 
are  bound  In  iwrpelual  service,  and  sold  along 
with  the  wurlis ;  and  indeed,  in  our  law,  ibcr* 
are  several  nlber  examplea  of  persons  being 
bound  ('>  servitude  during  tbeir  lives.  Tbe  act 
of  parhameAl  1597.  cap.  J7S,  eiiacU,  '  That 
slark  beggars  and  their  bairn*  be  employed  in 
common  works,  and  Jieir  serrice,  mentioned 
ill  the  act  uf  iiarliameal  1S79,  to  be  prurogala 
during  ibeir  liletimes.'  And,  ttilboul  going 
furiher,  it  is  Ihe  case  with  every  soldier  aud 
sailor.  tb«  former  of  ivhoiii  i*  shnt,  if  lie  en- 
deatuurs  to  niube  bis  escape  al  any  period  of 
his  life,  by  express  law ;  and  tlie  lador  is  sub- 
jected, during  the  same  sjiace  by  a  practice 
universally  admitted,  to  be  leiied  by  force,  and 
Lent  agninst  liis  uill  lo  the  remotesi  corners  of 
tbe  world. 

"  Tbe  pursuer  is  pleased  to  nr^iic,  thai  the 
coalliers  and  sattets  ate  tiut  a  remains  of  *jl- 
lenage ;  and  bis  arfriiment  for  tbis  is.  ibat  llie 
use  of  cual  in  Kcoilaad  is  sn  late  a  disuovery, 
thai  it  must  have  taken  place  lonir  after  villen- 
age  disappeared :  and  tu  ui'uve  thii,  he  cites  a 
passage  from  Marco  Paolo,  and  annllier  from 
£iiGa«  Sylvius ;  from  which  it  would  appear, 
Ihat  these  aulbors  bad  been  unncquainleJ  with 
that  mineral,  till  the  former  saw  it  in  China, 
and  the  UitPr  in  Scotland,  And  ftbe  pursucf 
adds,)  £n«iis  Sylrius  observes,  that  coal  waa 
only  Uiied  in  Scotland  where  it  was  barren  of 
wudd  ;  and  w  it  is  well  known  ihst,  during  the 
reiifii  of  the  Jameses,  ticoliund  wurery  inuoU 
covered  wiih   wood,  there  could  be  very  little 

>■  Thii  circuiiiKlance  seems  lo  he  tillle  con- 
neclol  wilb  Ihe  present  i|Uestion  ;  but  the  pur- 
suer's ui-iioiueolk  niipearlo  bnve  no  Tendency  to 
prove  tii..l  lliL-  stiile  of  the  e<ialliert  in  ScntlaDd 
u  mil  D  lUiiliou^Hrin  of  lite  ancient  tilleuage. 
By  tbe  churl,  r  ubnre  reciled.  that  instilntion  is 
irucod  dowr.  to  the  year  1368 ;  and  in  all  pruba- 
biliiy  it  continued  a  cuniiderable  time  longer. 
Marco  Paolo  tveut  in  China  abnut  100  year* 
before  Ibal ;  so  turrly  no  inlereore  can  be 
drawn  from  ibe  llalitns  being  unacquiiinled 
wilh  cual  iu  the  year  tSTO,  that  ibis  mineral 
was  not  diacoveied  iu  tJcotland  before  the  year 
1368. 


11]  12  GEORGE  III. 

negrro  slaves ;  ind  that  negro  slaves,  brought 
in  the  course  of  the  said  trade  from  Africa  to 
Virginia  and  Jamaica  aforesaid,  and  the  said 
other  colonies  and  plantations  in  America,  by 


The  Negro  Case. 


p« 


*  JEneas  Sylvius  vras  in  Scotland  in.  James 
the  Ist's  time.  The  defendtir  does  not  know  if 
the  pursuer  means  by  the  expression  of  Ja- 
cobus quadratus  to  insinuate  that  it  was  in 
James  tne  4th's  time ;  but  if  he  does  so,  it's  a 
mistake,  for  £neas  Sylvius  died  pope  in  the 
5th  year  of  James  3,  viz.  S3  years  before 
James  4  succeeded;  and  tberr  is  no  doubt 
that  his  joum^  to  Scotland  was  in  James  the 
Ist's  time,  probably  about  the  year  1430.  He 
then  describes  coal  to  have  been  in  comoion 
use  in  Scotland  ;  and  it  would  appear  very  odd 
if  there  had  been  no  coal- pits  in  Scotland  60 
years  before  that,  to  which  the  charter  above 
recited  brings  down  the  existence  of  villeins  or 
nativi. 

"  The  quotation  therefore  from  JSneas  Syl- 
vius is  a  proof  of  the  direct  contrary  of  what 
the  pursuer  endeavours  to  infer  from  it. 

**  The  circumstance  of  two  Italians  being 
surprised  at  seeing  pit -coal  affords  no  pre- 
auniption  that  it  had  not  been  used  for  many 
centuries  in  Scotland.  It  happens  every  day, 
that  Englishmen  are  not  believed  in  that  coun- 
try, when  they  describe  our  coal  to  them  even 
at  present 

'*  The  defender  does  not  know  what  the  pur- 
suer means  by  asserting,  that  it  is  well  known, 
Scotland  was  very  much  covered  with  wood 
during  the  reignb  of  the  Jameses.  As  iBneas 
Sylvius,  who  was  an  eye-witness,  declares, 
that  in  the  time  of  James  1,  it  was  perfectly 
bare  of  wood ;  and  it  is  exceedingly  probable, 
that  the  immemorial  use  of  pit-coal  before  that 
period,  had  induced  the  inhabitants  to  cut  down 
all  the  wood,  without  leaving  or  providing  suf- 
ficiently for  that  kind  of  fuel. 

'*  It  is  needless  to  enter,  with  the  pursuer, 
into  the  disquisition,  whether  the  state  of  coal- 
liers  be  a  severe  kind  of  slavery  or  not ;  as  it  is 
certainly  much  more  so  thau  that  to  which  the 
defender  claims  to  reduce  him." 

It  is  perhaps  worthy  of  notice  in  this  place, 
that  though  the  memorial  of  Mr.  Maconochie 
(lord  Meadowbauk)  bears  date  April  S5,  1775, 
and  that  of  Mr.  I<erguson  (lord  Pitfour)  bears 
date  July  4,  1775,  no  notice  is  taken  of  the 
statute  15  Geo.  3,  c.  28,  by  which  aOer  recit- 
ing that  by  the  statute  law'  of  Scotlaml,  as  ex- 
plained by  the  courts  of  law  there,  many  col- 
liers and  coal  bearers,  and  salters,  are  in  a  state 
of  slavery  or  bondage,  bound  to  the  collieries 
and  salt  works,  where  they  work  for  life,  trans- 
ferable with  the  collieries  and  salt  works,  when 
their  orifj^inal  masters  have  no  farther  use  for 
them,  it  is  enacted,  that  colliers,  coal  bearers, 
and  salters,  shall  not  be  bound  to  any  colliery 
or  salt  work,  or  to  the  owner  thereof,  in  any 
way  or  manner  different  from  what  is  per- 
mitted by  tbe  law  of  Scotland,  with  regard  to 
■crvants  and  labourers. 

Tbb  sutute,  it  sppetiw,  by  the  Lords'  Joor* 


the  laws  of  Virginia  and  Jamaica  aforesaid  and 
the  said  other  colonies  and  plantatMMis  in  Ame- 
rica, during  all  the  time  aforesaid,  have  been, 
and  are  saleable  and  sold  as  goods  and  chattels, 

nal,  was  passed  on  the  S3d  day  of  May,  1775. 
After  which,  it  seems  (see  Mr.  Benet's  account 
of  Dudingston,  in  the  18th  vol.of  sir  John  Sin- 
clair's Statistical  Account  of  Scotlabd,  p.  370,) 
that  the  coal  masters  strove  to  insure  the  de- 
pendenceof  their  coalliers,  and  consequently  tbe 
perpetuity  of  their  services,  by  seducing  them 
mto  their  debt:  to  remedy  which,  by  stat.  39 
Geo.  3,  c.  50,  among  other  provisions  respect- 
ing colliers  in  Scotland,  it  was  enacted,  « That 
no  action  shall  be  competent  for  ^oney  ad- 
vanced by,  or  on  behalf  of  coal  owners  or 
lessees  to  colliers,  except  for  snp|K>rt  of  their 
families  in  case  of  sickness,'  in  which  case  a 
specific  mode  of  procedure  is  provided. 

In  the  negro  case  in  France,  which,  under 
the  title  of '  La  Libert^  reclam^e  par  un  n^re 
centre  son  maitre  qui  I'a  ameoi  en  France,'  is 
reported  in  tbe  ISlh  vol.  of  *  Lea  Causes  G^* 
l^bres,'  See,  p.  492,  edit,  of  1747,  and  which  I 
apprehend  was  determined  in  the  year  1738,  or 
soon  afterwards,  the  questions  before  the  Court 
appear  to  have  been,  1st,  Whether  the  party 
claiming  the  negro  was  such  a  person,  as,  by ' 
the  French  king's  edict  of  October  1716,  was 
permitted,under  certain  formally  prescribe<l  con- 
ditions, to  bring  negro  slaves  from  the  French 
West  Indian  colonies  into  France,  and  to  retain 
them  there :  and  Sdly,  Whether  he  had  per- 
formed those  conditions;  with  respect  to  which 
it  was  provided  in  the  edict,  that,  "  faute  par 
lea  m&itres  des  esciaves  d'observer  les  forma- 
lity pr^rites  par  les  pr6ced^ns  articles,  let 
dits  esciaves  seront  libres,  eS  ne  pourront  dtre 
reclames."  For  though  M.  le  Clerc,  Pro- 
cureur  du  Roi,  did  indeed  mention,  that  nei- 
ther the  .edict  of  March  1685,  nor  that  of  Oc- 
tober 1716,  had  been  registered  in  the  parlia- 
ment of  Paris,  or  transmitte<l  to  the  proper 
officer  of  the  court  of  admiralty,  yet  it  very 
cleariy  appears,  that  he  did  not  lay  much  stress 
on  these  topics. 

But  tbe  eloquence  of  M.  le  Clerc  and  the 
ofher  advocates  who  argued  the  case  expa- 
tiated far  beyond  the  narrow  limits  of  the  dry 
and  uninteresting  quesiiuns  of  mere  positive 
law  which  I  have  stated.  The  powers  of  their 
learning  and  of  their  oratory  were  called  forth  ia 
all  their  vigour,  to  describe  the  character  and 
narrate  the  history  of  slavery,  to  display  its 
incongruity  with  the  benevolent  doctrines  of 
Christianity,  and  above  all  to  impress  upoo 
their  hearers,  that  slavery  was  utterly  and  ir- 
reconcilably opposite  to  the  nature  of  France 
and  of  Frenchmen,  and  to  the  original  principles 
and  established  administration  of  their  consti- 
tution and  government ;  insomuch,  that  to 
touch  the  soil  or  to  inspire  the  air  of  Franca 
was  to  be  free.  Thronghout  the  arguments 
this  last  position  not  only  was  undisputed  by 
either  party,  but  was  by  all  parties  either  as- 
sumed, or  admittedi  as  the  inoootrovertibls  as- 


13J 


ne  Negro  Can. 


A.  D.  1771. 


[I* 


ud  «fMi  Ibe  sale  thereof  hare  become  and 
bRtt,  aad  are  the  slaves  and  property  of  the 
pmthiri  thereof,  and  hare  beea,  and  are 

1 —         - I  -  -  ■!     1 • 

SfftM  of  a  notorious  (act.  Yet,  at  the  same 
im,  A  was  on  all  sides  propoanded  and  incul- 
oAil,  with  a  dilin^enee  and  copioasness  of  repe- 
MM,  which  is  not  commonly  expended  upon 
tkt  owinleDaoce  of  indisputable  truths.  I  hare 
fitraetcd  frono  the  rp|M>rt  the  followiogf  pas- 
Hirct,  whirh,  I  heliere,  will  sufficiently  con- 
n  vhat  I  bare  stated.  They  may  also  afford 
HBuwineDt,  if  not  instruction,  bv  exhibiting 
the  complacency— perhaps  I  should  rather  say 
the  triumph — with  which,  under  the  reign  of 
Lnrii  the  15th,  the  descendants  of  the  an- 
ciort  Franks  could  rhapsodise  concerning  li- 
krtr:» 

'*II  s^est  toojours  regard^  comme  libre, 
kfm  qu'il  a  mis  le  pied  en  France,"  p.  495. 

**  D^  qu*an  esclare  y*'  [se.  en  France]  *<  a 
■ii  ie  pied,  it  y  acquiert  la  liberty,"  p.  504. 

"  Vig  qn'un  esclare  est  entr6  en  France, 
i  de? ieot  hbre,'*  p.  504. 

**  11  faot  conclure  que  Pesctare  est  derenu 
ftrc,«I^  le  premier  instant  de  son  arrir^en 
Fnoce,''  p.  508. 

**  L'eotr^e  dans  la  riUe  de  Paris  assure  le 
Busticu,  etdevient  I'asile,  de  la  liberty.— « £st' 
[k.  LntetiaJ  *  sacro-saocta  ciritas,  qnie  pne- 
*Wt  emnibns  libertatis  atrium  quoddam,  asi- 
'Iraaqae  immanitatis,' "  pp.  511. 526. 

^Je  ne  me  propose  point  ici,de  porter  la 
■sbdre  atteinte  ao  plus  pr6;ieux  de  nos  biPiis : 
je  ae  pi^tens  point  enrier,  k  I'heorenx  climat 
^  WNN  babitotts,  cette  pr^rogatire  ^minente, 
stocMe  a  la  eeule  entree  en  ce  royaume,"  [this 

Vhnsetecnrs  again  in  n.  5SS.]  *'  et  oui  forme 

kfsrele  plus  assort  ae  la  liberie,  Jont  nous 
/ssSmas  nous-m^mes,"  p.  512. 

"Je  ne  craindrai  pas  d'arouer  arec  tons  les 
ismri,  qa*on  ne  conndtt  point  d'esclare  en 
Friaee,  ct  que  si  tcH  qn'im  esclare  Stranger  a 
isii  le  pied  sor  notre  continent,  il  est  g^tifii 
de  Is  rdiert^,"  p.  520. 

**  On  ne  conndit  point  d'esclare  en  France, 
ctqoicoMioea  mis  le  pied  dans  ce  royaome,  est 
ratifi^  de  la  libert^,'^.  595. 

^  Testator  Benedictns,  *  senros,  qui  Tholo- 
*  nm  aufogerant,  urbis  ingressu  ipso,  liberos 
'aciosetcires,*'*p.  527. 

**  Ups  maximea  si  pr^cienses  du  droit  Fran- 
pb  accordent  k  la  seule  entr<^e  dans  ce  roy- 
:arop,  au  seul  air  qu'on  y  respire,  le  droit  de 
b  lihert^,  ledon  de  la  franchise ;  j'ai  adopts  ces 
aaxunes,  je  leur  ai  rendu  tout  IMiommage, 
^'elle«  4§xigent  des  coeurs  rraiment  Frau* 
joii,"  p.  532. 

'*  La  France  se  fait  gloire  de  comrouniquer 

*  Mr.  Dnrke  (Reflections  on  the  ReroUition 
n  Fnoce,  See.  4th  ed.  p.  93)  remarks,  that  *<  it 
*ai  is  the  most  patient  period  of  Roman  ser- 
*jftDde  that  tbemes  of  tyrannicide  made  the  or- 
diaary  exercise  of  boys  at  school — *  ciim  pe- 
ns* iceoa  classis  nnmerosa  tyrannos.' "  The 
&as  is  in  Jartnalt  Sat  7,  t.  151. 


saleable  and  sold  by  the  proprietors  thereof  aa 
goods  and  chattels.  And  I  do  further  certify 
and  return  to  our  said  lord  the  king,  that  Jame« 

le  beau  privilege  d'affrancbisseroent  k  tous  les 
esclares,  lorsqu'ils  entrent  dans  ce  climat  hen- 
reux,  dont  le  seul  nom  r^paod  de  toute  part  la 
bonne  odeur  de  la  liberte,"  p.  539. 

"II  n'est  point  d'esclare  en  France ;.DOf 
constitutions,  nos  usages  ^tendent  la  farenr  de 
la  liberie  k  tous  les  hommes  en  g<Sn^ral  qui 
Pbabitent,"  p.  539. 

**  II  ne  peot  y  avoir  d 'esclares  dans  ce  roy- 
aume,  il  soffit  m6me  d'y  etre  eubli,  ou  d'r 
faire  sa  residence,  pour  acqu^rir  le  bien  pr& 
cieux  de  la  lilwrt^,"  p.  544. 

'*  Nos  privileges  ont elfar.^  jusqu' ^  I'id^  de 
I'esclarage  en  France,'*  p.  546. 

"  II  n'y  a  en  France  aucuns  esclares ;  et 
la  contume  y  est  telle,  que  non  seulement  les 
Francois,  mais  aussi  les  etrangers,  prenant  port 
en  France,  et  criant  France  et  Liberli,  sont 
hors  de  la  puissance  de  celui,  qui  la  poss^doit,** 
p.  549. 

*'  La  France,  m^re  de  liberty,  na  permet  au- 
cuns esclares,"  p.  549. 

**  Les  esclares  ont  en  France  le  pririlbge  de 
se  remettre  en  possession  de  leur  libeni,  an 
moment  qu'ils  sont  entr^s  dans  les  terres  de  ce 
royaume,"  p.  551. 

*'  De  terns  immemorial  Pesclarage  n'a 
point  lieu  en  France,  et  I 'esclare  ^tranerer  de- 
rient  libre,  aussitdt  qu'il  y  aborde,"  p.  551. 

"  Donter  si  en  France  un  homme  est  libre, 
si  un  esclare  acquiert  sa  liberty  par  son  entree 
en  France,  c'est  attaquer  I'autorit^  aoureraine 
de  nos  rois,  et  faire  injure  ^  la  nation,*'  p.  498. 

To  these  may  be  added  the  following  mors 
early  authority : 

'*  Toutes  pcrsonnes  sont  franches  en  ce  roy- 
aume,  et  sitost  qu'un  esclare  a  attoint  les 
marches  diceluv  se  faisant  baptizer,  il  est  af- 
franchi."  Institutes  Coustumi^reS)  (published 
at  Paris  in  1679)  p.  2,  cited  by  Mr.  Barringtoa 
in  bis  Obs.  on  stat.  1  Rich.  2,  where  he  has  col- 
lected some  curious  particulars,  relating  to  slfl- 
rery. 

Bf .  Tribard,  who  pleaded  against  the  pre- 
tensions of  the  negro,  admitted  aud  maintain* 
ed  the  proposition  that  there  were  no  slaves  in 
France,  as  a  general  rule ;  but  contended  that 
the  case  of  negroes,  belonging  to  French  West 
Indian  colonists,  was,  by  the  eilict  of  1685^ 
specifically  excepted  from  its  operation. 

"  Si  en  France,"  says  he,  **  on  ne  conndit 
poiat  d'esclares,  si  la  seule  arrir^^e  dans  ca 
rovaume,  procure  la  liberty,  ce  priril^ge  cessa 
k  r^rd  oes  esclares  n^gres  Fran9ois :  quelle 
en  est  la  raison?  C'est  qu'en  France,  c'est 
que  par  une  loi  de  la  France  meme,  les  esclares 
n^gies  da  nos  colonies  sont  constitu^s  dans  un 
esclarage  n^cessaire  et  autoris^,"  p.  529. 

After  noticing  an  *  Arret'  of  the  parliament 
of  Toulouse,  reported  by  Bodio,  he  proceeds, 
*■  Quel  peat  6tra  I'effet,  quelle  peut  ^tra  Tin* 


I5J  12  GEOnCE  III. 

SomineTieU,  in  the  said  writ  hercDDto  nnn«ei] 
named,  it  a  nfCTo,  and  a  niliTe  of  AtKca  ;  and 
that  the  uid  Jantcs  Kommeraelt,  tong^  before 
the  coming  of  llieuiil  nnt  to  me,  to  wit,  on 


n  61itqi]i  deux 


The  Ncgra  Case.  f  16 

tbc  IDlb  day  nf  March  in  the  year  of  oor  Lord 

waa  a  ne^ro  alart  in  Africa  alnresBid, 

and  afterwarilB,  to  nit,  on  llie  satiie  day  and 

y^er  lait  aforeaniil,  being  siich  negro  slave, 


duciioD  de  cet  arr6t,  r\ 

aitclea  aprii,  pour  k 

<tBl,  ]es  ta^<^ea  ct  la  piiiissnce  de  la  naliou,  »  j 

ttabli  une  leriiiuile  uCceMnire  car  cette  parlie 

de»  iujetBduroi?"  |i.  531. 

Again  "  Voilii  done  la  teiile  induction,  uni- 
quement  pai:  rapporl  ani  firaugera,  el  aux 
a»cla<reade«  «irangers,"  p.  S97. 
i"'Ituiuiitbe  cnnfe«scd  tliat  llie  pleading  of  SI. 
Trihard  wa«  not  >cry  cnutincing.  Of  the  style 
aud  co^«Dcy  uf  bis  nrguTnentation  the  ful- 
loiiinic  nbturd  faJEc  anil   despicaUe  common 

f  laces  may  siifli(.-e  as  aatnpleH :  "  Ceux  t|ai 
iul'oriuue  de  la  guerre  amuji^issuil  nux  vain- 
qururs  furent  appelltii  eivlaves,  icrci,  liien 
UMiiisil  leraiendo,  qu'ii  ttrTnuilo,"  \i.  514. 

*'  Neijue  enim  libertas  tulior  ulta  est,  qiu^m 
Amino  serrire  bono,"  |i.  UK. 

Judgment  ira's  giieu  fur ihc  Negro. 
Tiie  6'oife  A'oiV,  as  it  trMscallcd,ir3san  edict 
bearing  date  in  Alarcli  1G85,  nliicli  was  Isourd 
by  Lewit  the  14lh.  It  coiiliiini  varioDs  regu- 
laliqiu  rfE|irctiuK  llie  roniiitinn  and  Irealntcnt, 
the  rights  and  duties  of  negni  sliicii,  end  freed 
MTgroea,  and  of  tlie  Kreocli  Wett  Indian  <.-ol»- 
nieD.*  This '  Code  Noir'  is  citetl  in  llie  plead- 
ings ill  tlie  net^ro  case  reported  in  tlie  *  t'ansea 
Ci:lelires ;'  but  I  do  niit  pTcnre  that  it  at  all 
COiiceruH  that  particular  easr,  except  in  so  far 
as  it  recognizes,  nud  e.tlabliiJiea  the  i/(i(uii  of 
alavery  ;  iin  wbicli  aeenunt  indi>eil  mucli  re- 
liance was  placed  on  it  in  itic  pli'ailiii;;s  Ibrihc 
party  irliu  claimed  to  be  •inneriif  thi'  lu'gro. 

Ill  Oclnlwr  iriO,  li-wis  the  l.^ilb  pnllisht^l 
■n  edict,  *  conccrnant  Ics  niclaves  nr'^^icsdcs 
eolonifs,'  hy  wliicli, alter  recitin:;,  iiiUr  alia, 
"  conim''  nous  avons  vid  infiirmd^,  epic  plii- 
■ienrs  lialiilans  <lo  niM  isles  de  TAnitriquc  d^- 
rircul  enioyer  en  France  <pielques  uus  de  icur* 

*  In  Air.  Ilargrave's  Arguii-ent  in  the  text, 
this  eilici  n  said  to  have  been  made  in  Muy 
IGQj.  bill  ill  tlie  copy  of  tlieeilict  trliicb  ia  iii- 
tertcd  in  the  13tli  vuluini:  uf  the  "  Causes  C^- 
Ifl>res,"  the  date  is  tn  ice  iiieiiiioiied  to  bu  Marcli 
1685.  Inlliatrntumcihe  edict  lies n  tbe  ful- 
Inwing  lille,  "  Le  Code  Noir  ou  Kdil  du  Itui 
•ervant  de  r£glement  pour  le  uouTciiiemcut  et 
radininislrattnndelajiislii'eetikiiolicedcB  Isles 
Fraii^'«i$es  de  I'Anicriqnu.  et  pour  la  diKcipline 
et  le  cuniincrce  des  no;:reii  el  esclaien  daiiH  le 
dil  pays."  In  the  preiimbk' tlieobjerla  of  the 
tdict  ar«  ststed  to  be  "  y  mainleiiir  la  dnciplins 
tie  I'iighse  ciitliolii|iie,  apusl«h<|ue,  el  rouiaiiie, 
•>  y  nigler  ce  iiui  oonccrne  I'eial  el  la  quslilc 
de  nos  envlaveii  datia  nu*  diles  itiloii."  And  ac- 
cordingly all  its  proiistuiis  relate  to  thecnncrros 
of  religion,  of  alaiet,  or  of  freed  jierMins.  In 
Ibe  mnnlb  of  AugUBt,  liiUS,  the  king  issued 
•nolbcr  edict  fur  the  eiiuiblhihiueui  of  courts 
of  jutiice  in  St.  Domingo, 


eaclares,  ponr  lea  conflrmcr  dana  les  inslroe- 
liops  et  dans  les  fxercicea  de  nntrc  religion,  et 
pour  lenrfaire  apprenih'c  q<ielque  art  et  niftier, 
dont  li-s  colonies  recefroient  bi'aiicixip  d'ulilitd 
par  le  relour  de  cea  esclaves  ;  mais  que  cea 
hiibitans  craignent  que  les  csctoTes  ne  prClen- 
dent  tire  libres  en  arrirant  en  France,  cc  qui 
pnurrnit  causer  aux  dits  haiiitBusnneperle  con- 
siderable, atlesd^tounierd'uiiubjet  aussi  pieux 
et  luisi  utile ;" 

"  Le  Itoi  ordnnne  que  *\  quelqucs  una  dei 
hahitans  des  colonies,  ou  ilea  officiera  employ^ 
dans  I'olat  veitlent  amcner  avec  cux  des  es- 
c1avesn<^gret<le  I'unondel'iuitTesexe,  en  qua- 
lity lie  iltunestiqueB  un  antremenl.poiir  lc<for- 
lilierdDDsta  religiun,  ^.  leH  proprietairecscront 
tcnus  d'en  olitenir  la  perinisstiin  ite«  goiiTerit- 
cnrs  g^iit-ruux  on  rouiinanduiiB  daoii  chnque 
isle,  lr.i{iii'!le  permission  cuiitiendra.  le  noin  do 
prnprielaire,  celuidesescliive«,leur  ilge,et  leur 
signal  emenl. 

~"  Lps  pmprlf'taircs  de*  dils  eirclaTea  veront 
pa rritie merit  obliges  de  fairo  ciirpgistrer  ladilo 
(lermisiiion  an  grrtTi-  di'  la  jurisdidion  dii  lien 
deleiir  r(:iidei:i-«  iiv.-iiit  !eur  i'c|<iirl,  etencelui 
ite  ramimui^  du  lieu  >hi  ri(''i:in>iiement,  dans 
huiiaine  apiis  I<-ut  nrrii  I'a  en  I'Vunce." 

Tbe  eilict  next  proceeds  to  eslabliali  corres- 
pondent reguLtinns  for  the  case  uf  negro  hUvea 
whom  llii-ir  uwuers  shall  send  under  the  care 
of  other  pemaiM  fi-om  llie  culoiiiea  tu  France. 

It  iIhiii  iinlaini  ib.it  regrim  sci  by  their 
owners  brnngbt  or  aeot  into  Franco  aliall  nut 
by  reusou  iliurcuf  acquire  any  right  to  their 
Ir'cedom,  but  nhall  he  coinpeUBble  lo  return  lo 
the  colonies  at  the  will  of  their  owner* :  it  in  pn>- 
vidnl  bowerer,  that  in  case  tlio  onuers  ha*« 
lu^lcclk^  tu  comply  with  tlie  prescribed  regula- 
IJoiiH,  tlie  negmeii  shall  become  tree,  and  Iba 
uwiiera  sball  lose  all  property  in  tbem. 

The  remainder  uf  the  edict  does  doI  affect 
the  case  liclbre  ua, 

nir.  Baron  Maicrcs  (Ilislnriie  Anglicannj  Se- 
lecla  Monumenta,  pp.  13,  3U1,)  oliserrea  of  a 
passage  in  the  Encomium  Bminie  that  "  it  plain- 
ly xbeH'stI  ml  there  were  at  this  lime  in  Uenmnrk 
Kei'iml  men  in  astute  of  sla>ery,  called  in  tbia 
|Kis>iigeM'7i't  .-  and  otberstbat  were  I'reed-men, 
firlhni,  ufler  having  been  slaves,  bnd  been  mad* 
free,  it  icnit  tilrili ;  and  a  Ibiid  sit  of  men 
nhn  liHil  alwavH  \<rvn  tVt-c,  but  were  nut  mible, 
and  ubo  are 'in  this  pasii^igu  cnlleri  ignoHletf 
and  priibably  were  the  hiitiliiiiTihiieii  and  tiamly- 
crafisiiien  uf  the  coumry  ;  aud,  liKtJy.a  fourlll 
Rcl,  who  were  colteil  nolitenien,  uubiffi,  and 
u  bo  si'eni  til  have  Ik^cu  the  warriors,  nr  mili- 
tary part  nl'  ihe  people,  and  who  niusi  hare 
been  lery  nnoieroiis,  since  bI)  the  whn^rurmj 
of  Caniile  the  Daue,  it  hen  he  invaded  EnglaiM 
after  tlie  death  of  Ling  Swein,  his  father.  It 
said  to  have  been  compoMil  of  men  of  this  clan, 


TAe  yegro  Case. 

■  twgfc*  in  Uie  Gouree  uf  ibe  saiJ  trade  u 
■  MCMMVe  from  Africa  aforesaid  to  VirginJB 
rfewni^  to  be  ibere  Eold;  and  aftcrwarda,  lo 
«il,MtlM  1st  ibjr  of  Auguu  Id  the  year  last 


•■M*  wm  emit  nobilea.'  And  Ibe  people 
rfftgl^nil  were,  probably,  at  ihiaperiud  dis- 
tifMhvl  iaU  differenl  ciastas  of  nearly  tbe 
■M  Iml*-  At  teail,  it  it  rvrtaio,  tbal,  before 
••  Ihniui  ConqueM  aa  well  ai  after  It,  the 

Sboiltr  of  the  cott«|;en  and  li  a  ndy craftsmen 
M  fibclumithi,  millero,  and  cart-irrigbla) 
nirj  vtllafea  were  alares,  or  what  our  utd 
ba  baoln  oUled  '  rilldtii  regardant,'  or  belong- 
iiftoliie  manor,  or  serviodscriptitii  gUia,iud 
«fR  alienated,  as  sucb,  by  name,  togelber 
m4 llieir  fatiiiliee,  and  all  tbe  goodi anilcbal- 

tranicribed  from  Ingul- 
|tai  ft  Branl  Dlade  by  Thorold  in  tbe  year 
Wl  to  UM  «l>b<<y  of  Crowlaod  of  >•  totum  ma- 


,  (ud  elvvEa  others) 
MH,  mm  omoilius  lioois  et  calaliia,'  qiicc 
Mmt  m  •tidft  Tillii,  et  in  campis  ejus,  ei  in 
MOKic,  mbsqiK  uUo  de  omnibus  rctioemeDio." 
Aru  Wales,  Rowlanil*,  in  recnuating  the  ob- 
Mmtina>  respecting  tbe  "  true  staLa  and  con- 
J-|i«*f  ibe  Brititb  gorernmeDt,"  and  of"  the 
-  -'M  Bntieh  leiiurea,  and  the  former  cus- 
M  aad  iMHVea  thereof,"  which  be  bB<1  col- 
•  n>d  fron  Uioio  materials  uf  information, 
vbcJi  "  our  own  careleai  neglect  bad  omitted, 
bet,  *•  •  jual  reproach  to  our  wretched  osci- 
^urj  aail  nrmiunMi,  the  covelousnesa  of  our 
»■»  wwchf'iil  conqueror*  took  care  lo  record 
*Mt  fumarte  fat  us ;  that  ia  ihe  Eo^ilish  mo- 
aMitl,wtiaii  ibry  ({otlhemiehea  FFlsed  of  Ihe 
h«fi— iuiwfuur  British  royalties,  and  fouod 
u  ■aJc  lUemteltea  intilled  or  interested  by 
4«M  ar  oviiqueal  lo  tbe  ancient  re  vena  es  of 
■e  BntUh  prineei,"  says  (Mona  Antiqua 
BMHsMa.  410.  Sd  ediliou,  London  1766  ;  Ihe 
baer  vMimm  wat  pnbhxheil  in  Dublio,  in 
IM,  Ih*  JFMT  of  tbe  anibor'a  dealli  :)  "  We 
r  '.J,  that  Ihe  tenants  of  bond-lands  and  ill- 
if^  ac  tliay  were  of  a  qui>lity  below  and 
'<nar  to  fraeliolders,  so  Ibey  were  obliged  tu 
.:>*Mr  drailgerirs,  anil  employed  in  more 
-•lie  work*,  and  were  to  be  diKjiosed  of  in 
iitj  Uiiagi,  at  ibeir  lords  and  princes  pleased 
jic  them.  Aud  of  llicae  suiue  were  free 
-iitia,  and  anmo  pure  natirei.  The  free  na- 
Lfi*.  I  lake  lu  be  Ihoae,  ivbo  had  some  degree 
•(fiecJutn,  who  might  ki>  where  tliey  wunid, 
m^t  buy  anal  acll,  and  had  tuany  immun* ' 
■    *(s(  tbey  werecallcd) 

<t  a«  lliev  liste<l.  And 
'isenber  lu  hate  mel,  in  air  William  Gruf- 
•I's'  bewk,  with  an  abstract  of  a  deed,  where 

'  nawtamU,  »peak>i)||i>l  'l>^o1d  returns  aud 
r^aa  which  had  been  mid*  by  jurors  to  tbe 
I  of  coijuiry  irilo  taourea, 

nuxx. 


aforeaaid,  the  aaid  James  Sommer«ell,  betiq> 
aod  continuing  such  negro  slate,  was  told  io 
Virginia  aforesaid  to  ons  Charles  Sleuut,  enj. 
who  then  was  an  inhabitant  of  Virginia  afure- 


ihe  natives  of  tbe  lownsbip  of  Porlhoethwy, 
many  years   alter  the  lime  of    the    British 

Ktinces,  were  sold  a^  part  of  tbeeslnle  of  those 
inds  ihey  belonged  lo  ;  and  of  wbiob,  and  of 
others  of  that  aiirl  I  ha*e  giren  elsewhere  large 
inslmoea.  And  1  hare  by  meacopyof  iujuoc- 
lion,  issued  out  by  Henry  the  seventh,  king  of 
England,  commanding  escheators,  end  all  other 
minisiei'ial  oiGcers,  to  see  that  Ibe  king's  nalite 
Icnenla  kept  wllbin  tlieir  priiper  limili ;  and  if 
any  of  them  were  found  to  stray  and  wander 
from  tbeir  home,  to  drive  iliero  back,  like 
beasts  to  their  plofolds,  with  the  greatest 
severity." 

And  in  a  book  intilled  Beauties  of  Rncrland 
and  Wales,  toI,  irii,  by  the  Rev.  J.  Evans, 
8vo,  IBia,  1  have  met  with  the  following  pas- 
sage : 

*■  Among  the  boons  bestowed  u|H>n  tbe  cor- 
poration ot  Beaumaris,  tio  late  even  as  tlia 
fourth  year  of  Elizabeth's  reigo,  the  following 
grant  appears:  '  All  and  sioKulur  tbe  king's 
'  luiids,  lenemetils,  and  berciliiamenis  in  Bodi- 
'  new,  aodhis  villagers (culiirelors)  in  (be  same 
'  town,  if  any  be,  with  their  offspring.'  But 
this  was  probably  no  more  than  an  eieinplift- 
calion  of  a  grant,  madj  lung  before,  by  way 
of  conRrmatioa. 

■■  The  fallowing  is  one,  out  of  three  docu- 
ments, Bilduoed  by  Ur.  Itowlands.  '  Edynfed 
Vychsn  ap  Edynfed,  alias  diclus  Ednyled  ap 
Arihelw  01  Uavydd  ap  Grutfyd  et  Howe)  ap 
Dsvydd  an  Ryryd,  alias  dictus  Howel  ap  Ar- 
ihelw uz  Uavydd  ap  Gryffydd,  Ubtri  lenentea 
D'ni  Regis  villcc  de  Rbandei  Gadog,  Sec.  de- 
dimuB  et  confirmavimus  Wilhmo  ap  Gryf- 
I'yild  ap  Gwilim  armtgero  et  libera  tenenti  de 
Porlbainet,  ice.  septem  nalivos  nostroB ;  viz. 
Howel  ap  Darydd  Dew,  Malln  ap  Uavydd 
Ui^w,   Jevan   ap    Etau    Ddu,    Llewelyn    ajt 


t  ap  Sit 


Dew,  Howet  ap  Slatio  ap  Davydd  Dew,  et 

Sec.  says  (p.  lao)  '*  For  what  light  we  have 
from  these  records,  wo  ought  to  be  much 
obliged  to  the  generous  care  aud  industry  of 
that  very   worthy   and  deserveitly   celebrated 

Cersiin,  sir  William  Grulfydd  ot  Peoryhon, 
night  and  charoherlain  of  Norlh  Wales  ; 
who  preserved  these  records  from  perishing, 
by  collecting  so  many  ol  them  ns  he  could  re- 
trieve from  moth  and  corruplton  ;  and  then 
causing  those  scatlereil  rolls  and  fragmenla 
whichlie  oauld  meet  with,  to  be  tiiirty  wriilen 
by  one  JenkyoGwyn,  iu  two  large  booki  of 

EiaTchmrut,  lor  the  informalioo  of  posterity. 
>ne  whereof  is  that  bunk,  bupl  always  m  the 
Chaniberliiin'*  office,  cbW  by  ihe  name  uf  the 
Extent  of  North  Wales  ;  and  the  oilier  ha 
transinitled  into  the  Auilitor's  uffioo  at  Louden, 
where  it  is  preserved  to  Ihu  day." 


.  "^trc 


<«.<.      >«*•«> 


IV  S'esTo  Case, 


[SO 


t 

IW 


•  A-i** 


nanaaiiaed,  enfrancbisetl,  wt  free,   or  du« 

.nia^^vJ ;  lod  tbat  the  same  James  Somroer" 

wu.  90  bciDZ  the  negro  slmve  and  property  of 

«iiv^  7«f».'a     a.m  tUc  »aid  Charles  Steuart,  and  the  laid 


^       "^u    .  '«iK-  -'an  ?vr-im  ^•{UkIia 
.   ,  ..,««..•»•      »*»*.•« »iiui»    MC    'tiiii/oas 

.  .^   -.^.  .**  X       ^W5*v   ^  iiiutu  t»fuif\d  ap 

,•* i,.;v>  .•-    i>9*:»*i4us  *a».afwr]ie- 

^ •.v.tt    V, '.Mi  x.iJ.i«i..' Ga»i*»C.  iO  die 

N  .  :v«:  V  ye  '  i>faii;.ef.  5cc/  it  is  slated 
*K..  ■  .»  :ic  ♦■.•N«''x /ans  cr'EciiUDd.if  some 
«M  .t»  i  -.  9..-.U  .*•-  '.s^i.  xu  u^uji  coDilitioD  is,  to 
.4. v.-  A.1  'i-  j.'K':tJi...vs  up<ia  them,  male  and 
MSti:.'.c.  '  r.  >  ici  vfT.i^T  denominates  '-an 
c-.t-cvi  ..•  i- a   j^^erip^  projl' of  persons  be- 

l>e  .»':o!e  ot"  Mr.  Burcott's sixteenth  chap- 
1^  ^r.ca';>c-  Oh  the  Criminal  Law  of  Scol- 
1.1  .K-'  :3»  1  C'.ni'.inentary,  cx'eniliiin'  throu«;b 
sc««r.:t%  -i'n«*  iiopa^.*,  upon  the  ^  Act'  (already 
boIavO)  *  tvr  preveLi:in^  wron£;ous  imprison- 

*  meui,  aud  a^aiust  undue  delays  in  trials' 
(chap.  c> «  f  tite  eiirhlh  and  ninth  sessions  of  king; 
^\  iiliaar:!  |-:irliaixic*ut  1701).  He  says  of  it 
tb.it  it  coii>|>i!$t:s(in  some  respects  with  (greater 
•tvnritv  to  the  Uberty  of  the  subjects)  the  pro- 
vi>ion<*  of  all  the  several  statutes  which  the 
lekfislaiure  of  Eusjland  has  passed  for  the  per  • 
•i>nal  ht^rty  of  the  subject,  and  that  therefore 
it  justly  may  beteimed  the  Ma^na  Charta  of 
K'Oilaiid.  Ai  d  in  the  case  of  Andrew  against 
AJurdiH-h,  the  lord  justice  clerk,  Hope  (now, 
181'.Mord  president)  said  •*  Our  Act  1701  is 
grvatly  more  favourable  to  the  liberty  of  the 
unhjec't  in  every  respect  than  the  IJalieas  Cor- 
|>us  .\clof  Euj^land." 

Of  a  law  thus  celebrateil,  the  provisions  will 
ataturaily  excite  in  the  mind  of  every  lover  of 
Lis  country  a  warmth  of  interested  curiosity. 

The  enactments  of  this  statute  are  numcrou*, 
•xteuNive,  and  minute.  The  statute  itself  is 
Ihen'fore  very  lonir.  I  recollect  not  any  ac- 
count of  it  in'Mr.  Lain&f's  History.  Mr.  Bur- 
uelt  exhibits  a  brit- f  history  of  its  origfin,  and 
analysis  of  its  provisions ;  which  I  will  sub- 
slit  nte  for  the  copiousness  and  particularity  of 
the  act  itself. 

**  The  ConTenlion  of  Estates  of  Scotland,  in 
the  >(*»<'  1()89,  declared,  anion^^  other  thint^s, 
that,*  *  exact iif^  exorbitant  bail,  and  imprisoning 

*  |M'rson>'  wiili'iut  ex])ressin^  the  reason  liieie* 
'  of,  uii<'  !elu3  in^  to  put  them  to  trial,  an*  cnn- 
■  trnry  to  ihe-kuown  laws,  statuten,  anti  freedom 
'  of  the  realm,'  and  the  redress  nf  this  ihry 
claimed  as  their  undoubted  rit^ht  aud  privilege; 
And  further,  *  that  no  declarations,  doiii^fs  ur 
'  proceed infifN,  to  the  prejudice  of  the  people, 
'  m  any  of  the  said  premises,  ought  m  any 

*  ways  to  be  decisive  licreafter  in  consequence 
<  or  example.'  These  grievances,  in  a  sub- 
■equentietter  to  the  king  (1689»  chap.  t7.)  the 


estates  prayed  his  majesty  to  redress  by  whole* 
some  laws  in  his  first  parliament. 

*-  f  n  the  first  parliament,  accordingly,  most 
of  these  grievances  were  re«lressed,  and  parti- 
cularly, the  exacting  of  exorbitant  bail,  impri' 
i  soniog  persons  without  expressing  the  cause, 
:  and  delaying  to  put  them  to  triai,'by  the  well 
known  sutute  1701,  cap.  6,  which  the  people 
[  in  this  part  of  the  united  kingdom  must  view  as 
I  one  of  the  greatest  benefits  conferre<l  on  them 
'  by  the  Revolution,  whether  it  be  held  as  a  law 
declaratory  only  of  their  fornMr  rights;  or  as 
introducing  provisions  in  f iivour  of  the  subject, 
which  had  not  previously  been  either  so  well 
define«l,  or  observed  in  practice. 

'*  The  objects  indeed  of  this  statute  are  of 
the  first  importance  to  the  security  and  happi- 
ness of  every  individual  of  the  community  ; 
inasmuch  as  the  injury  of  unjust  and  illegal 
confinement,  h  iiile  it  is' often  the  most  difficult 
to  guard  against,  is  in  its  nature  the  most  op- 
pressive and  the  most  like!}'  to  be  resorted  to 
by  an  arbitrary  government.  Some  have 
thought  that  unjust  attacks,  even  upon  life  or 
property,  at  the  arbitrary  will  of  the  magis- 
trate, are  less  dangerous  to  the  commonwcidthB 
than  such  as  are  made  upon  the  personal  lilierly 
of  the  subject.  Without  accusation  or  trial  to 
bereave  a  man  of  life,  or  by  violence  to  con* 
fiscate  his  estate,  would  be  so  gross  and  noto- 
rious an  act  of  despotism,  as  must  at  once  con- 
vey the  alarm  of  tyranny  throughout  the 
whole  kingdom.  But  coutinement  of  the  per- 
son by  secretly  hurrying  to  jail,  where  the 
sufferings  of  the  party  are  unknown  tir  for- 
gotten, is  a  less  public,  a  less  striking,  and 
therefore  a  more  dangerous  engine  of  arbi- 
trary government.  (Blackst.  Comm.  book  1, 
chsp.  1.) 

*^  The  statute  proceeds  accordingly  on  the 
preamble  of  the  previous  declaration  by  the 
Claim  of  Right,  and  the  interest  which  all  his 
majesty's  suhjf  cts  have,  *  that  ilic  liljcrly  of 
'  their  persons  be  duly  sernred  ;'  and  contains 
in  its  enactnititt  almost  every  proviMon,  i«hicb 
has  at  any  period,  or  almost  in  any  s\steni  of 
law,  been  deemed  most  conducMve  to  the  per- 
sonal liberty  of  the  subject ;  m  toe  hauie  time, 
it  inlro«luccs  regulations  mid  » xeeptions,  which, 
while  they  are  the  best  calcubted  to  ensure 
that  object,  render  it  nowise  inconsistent  with 
the  safety  of  the  public. 

'*  It  sets  out  by  providing  arainst  the  first 
steps  towards  an  illegal  confinement,  the  ap- 
prehending of  the  |>ersons  without  a  regular 
information  and  a  special  warrant,  and  guards 
against  any  continemcnt,  tbiU  is  not  necessary 
to  ensure  the  attendance  of  the  party  on  the 
day  of  trial.  In  the  next  place  it  declares 
what  crimes  shall  be  bailable,  and  directs  the 
sneediest  mode  of  finding  bail ;  and  to  preYent 
toe  possibility  of  any  vsgue  discretion  being 


81] 


The  Negro  Case. 


A.  D.  1771. 


[S9 


Chakf  Steuari  baTing^  occasion  to  traosact 

enuin  iffairs  and  business  of  bim  the  said 

Chiriei  Sleoart  in  this  kingdom,  be  tbe  said 

Chsrkf  Sieuart,  before  the  coming  of  the  said 

writ  10  me,  to  wit,  on  tbe  first  day  of  October 

bikjearof  our  Lord  1769,  departed  from 

Awrica  aforesaid,  on  a  voyage  for  this  king- 

km,  for  the  purpose  of  transacting  bis  afore- 

■d  affairs  and  business,  and  with  an  intention 

aretarn  to  America,  as  soon  as  the  said  af- 

6in  and  business  of  bim    the  said  Cbarlea 

Snart  in  this  kingdom  should  be  transacted ; 


in  6zing  its  amount,  which  might 
Mat  the  whole  provisions  of  the  law,  it  as- 
eotaios  the  mojclmum  of  bail  in  each  case,  ac- 
cording to  tbe  rank  of  tbe  person  in  custody 
|br trial;  and  imposes  biffh  penalties  on  the 
ji^  who  shall  delay  modif^mg  the  amount, 
m  rerose  to  accept  of  sufficient  bail,  when  of- 
frrcd.  The  act,  however,  would  have  been 
pally  defective  bad  it  stopped  here,  for  of 
vbtt  use  would  have  been  the  precautions  al- 
Ridy  mentioned,  if  in  cases  either  where  bail 
eoulii  not  be  found  by  the  party  entitled  to  it, 
a*  wben  it  could  not  be  received,  owing  to  the 
Uare  of  the  crime,  the  person  imprisoned 
■i^  be  wrongously  detained,  in  consequence 
rf  a  delay  in  puttinflf  him  to  trial  by  a  certain 
dij;  tbe  act  therefore  directs,  that  in  such 
e»N,  the  party  shall  have  rij^lit  to  insist,  that 
vilhiD  a  certain  lime  a  diet  shall  be  fixed  for 
\k  Irial,  and  tbe  trial  carried  through  and  con- 
dsdcd  by  a  determinate  day,  other%vise  he  is  to 
WkI  at  liberty,  under  the  |>pnaity  of  wrongous 
iiayrisooment,  anil  is  not  to  be  again  incarcerate, 
aalm  nn  new  criminal  letters  raised  against 
W, before  the  lords  of  Justiciary  ;  in  which 
Iw  dftf,  bis  trial  must  be  concluded  in  ano- 
iIkt  dij,  iiarticularly  fixcil  by  the  enactment, 
<(fr«rvite  the  prisoner  is  to  be  set  at  liberty, 
lodto  be  tor  ever  free  from  all  question  or  pro- 
CCK  for  tliat  crime.  Certain  exceptions  are 
iben  ioiroduced  with  resfiect  to  treason,  and 
Mtae  Cither  oflTences  more  immediately  affecting 
t^  public  security  ;  and  a  provision  annexed, 
tlut  uii  person  shall  be  *■  transporte<l  furth  of 
'tlii<i  kingdom,' except  with  his  own  consent, 
fiven  before  a  judge  or  by  legal  sentence, 
Boder  the  certification,  that  any  judge  or  ma- 
{a^raie,  who  shall  give  order  for  such  trans • 
portaiion,  or  any  one,  who  shall  so  transport 
taotiier,  shall  nut  imly  Im*  liable  in  the  pecu- 
aiiry  paius  of  'wrongous  impriKonment,  as  de- 
dared  by  the  net,  but  sbaii  lose  their  oflices, 
!&•!  be  I'f^'hired  incanablu  of  all  public  trust. 
Tht-«e  arc  the  general  outlines  of  this  important 
uaiiite  ;  the  value  of  which  cannot  be  too 
fcu^nly  prized  by  the  people  of  Scotland,  nor 
^  rtUervance  too  strictly  maintained  by  the 
judjes  and  magistrates.'* 

B)  the  act  of  the  30ih  of  George  S,  per- 
KU  accused  of  sedition  are  excepted  from 
aruio  pn)vi*fion8  contained  in  the  act  against 
*^iD::*lUs  imiiiisoniiient.  As  to  this,  see  the 
Cm  of  the  liiuters  against  tbe  Militia  Law, 


and  afterwards,  to  wit,  on  the  lOtb  day  of  No- 
vember in  the  same  year,  arrived  in  this  king- 
dom, to  wit,  in  London,  that  is  to  say,  in  the 
parish  of  St.  Mary-1e-Bow    in  the  ward  of 
Cheap;   and  that  the   said  Charles  Steuart 
brought  the  said  James  Sommersett,  his  negro 
slave  and  property,  aK>ng  with  him  in  tbe  said 
voyage,  from  America  aforesaid  to  this  king- 
dom, as  the  negro  slave  and  property  of  bim 
tbe  said  Charles  Steuart,  to  attend  and  serve 
him,  during  bis  stay  and  abiding  in  this  king- 
dom, on  tbe  occasion  aforesaid,  and  with  an 
intent  to  tarry  the  said  James  Sommersett 
back  again  into  America,  with  him  the  said 
Charles  Steuart,  wben  the  said  affairs  and  husi* 
ness  of  the  said  Char1e<)'  Steuart  should  be 
transacted ;  which  said  affairs  and  business  of 
the  said  Charles  Steuart  are  not  yet  transacted^ 
and  the  intention  of  the  said  Charles  Steuart 
to  return  to  America  as  aforesaid  hitherto  hath, 
continued,  and  still  continues.    And  I  do  fur- 
ther certify  to  our  said  lord  the  king,  that  tha 
said  James  Sommersett  did  accordingly  attend 
and  serve  the  said  Charles  Steuart  in  this  king* 
dom,  from  the  time  of  his  said  arrival,  until  tha 
said  James  Sommersett*8  departing  and  absent- 
ing himself  from  the  service  of  the  said  Cbarlea 
Steuart  herein  after- mentioned,  to  wit,  at  Lon- 
don aforesaid  in  the  parish  and  ward  aforesaid  ; 
and  that  before  the  coming  of  this  writ  to  me, 
to  wit,  on  the  first  day  of  October  in  the  year 
of  our  Lord  1771,  at  London  aforesaid,  to  wit, 
in  the  parish  and  ward  aforesaid,  the  said  Jamea 
Sommersett,  without  the  consent,  and  a^inst 
the  will  of  the  said  Charles  Steuart,  and  withoul 
any  laivful  authority  whatsoever,  departed  and 
absented  himself  from  the  service  of  the  said 
Charles  Steuart,  and  absolutely  refnsed  to  re- 
turn into  the  service  of  the  said  Charles  Steuart, 
and  serve  the  said  Charles  Steuart,  during  hia 
stay  and  abiding  in  this  kingdom,  on  the  occa* 
sion  aforesaid :    whereupon  the  said  Charles 
Steuart  afterwards  and  before  the  coming  of 
i  this  writ  to  me,  to  wit  on  the  261  h  day  of  No- 
vember in  the  year  of  our  l^ird  1771,  on  board 
I  the  said  vessel  called  the  Ann  and  Mary,  then 
and  still  lying  in  the  river  Thames,  to  wit  at 
London  aforesaid,  in  the  parish  and  ward  afore- 
said, and  then  and  still  bound  upon  a  voyage 
for    Jamaica  aforesaid,  did  deliver  the  said 
James  Sommersett  unto  me,  who  then  was, 
and  yet  am  master  and  commander  of  the  said 
vessel,  to  be  by  me  safely  and  securely  kept 
and  carried  and  conveyed,  in  the  said  vessel,  m 
the  said  voyage  to  Jamaica  aforesaid,  to  be 
there  sold  as  the  slave  and  property  of  the  said 
Charles  Steuart ;    and   that  I  did  thereupon 
then  and  there,  to  wit  at  liondon  aforesaid  iu 
the  parish  and  ward  aforesaid,  rccciTeand  take, 
and  have  ever  since  kept  and  detaioe<l  the  said 
James  Sommersett  in  my  care  and  custod}',  to 
be  carried  by  me  in  the  said  voyage  to  Jamaica 
aforesaid,  tor  the  purposi?  aforesaid.     And  this 
is  the  cause  of  my  taking  and  detaining  the 
said  James  Sommersett,   whose  body  i  hare 
now  ready  as  by  the  said  writ  I  atn  com- 
manded."   . 


fS] 


12  GEORGE  IIL 


The  Negro  Cue. 


P* 


After  the  readinn^  of  the  return,  Mr.  Ser- 
jeant Dary,  one  of  the  counsel  for  Som* 
mersett  the  negro,  desired  time  to  prepare 
his  argunnent  against  the  return ;  and  on 
account  of  the  importance  of  the  case,  the 
Court  postponed  hearing  the  objections  against 
the  return,  till  the  7th  of  February,  and  the 
recognisance  for  the  negro's  appearance  was 
ouutinued  accordingly.  On  that  day  Mr.  Seij. 
I>avy  and  Mr.  Serj.  Glynn  argued  against  the 
return,  and  the  farther  argument  was  post- 
poned till  Easter  term,  when  Mr.  Mansfield, 
Mr.  Alleyne,  and  Mr.  HargraTC,  were  also 
beard  on  the  same  side.  Afterwards  Mr. 
Wallace  and  Mr.  Dunning  argued  in  support 
of  the  return,  and  Mr.  Serjeant  Dary  was 
beard  in  reply  to  tbero.  The  determination  of 
the  Court  was  suspended  till  the  following  Tri- 
nity term ;  and  then  the  Court  was  nnanimous- 
Iv  of  opinion  against  the  return,  and  ordered 
that  Sommersett  should  be  discharged. 

Argument  of  Ma.  Harobave  for  the  Negro.* 

Though  the  learning  and  abilities  of  the 
gentlemen,  with  whom  I  am  joined  on  this 
•ccasiouy  bsTe  greatly  anticipated  the  argu- 
■lente  prepared  liy  me ;  vet  I  trust,  that  the 
importance  of  the  case  will  excuse  mci  for  dis- 
closing my  ideas  of  it,  according  to  the  phm 
and  order,  which  I  origindly  found  it  con?e- 
nient  to  adopt 

The  case  before  the  Court,  when 
^a!tc£!^^  expressed  in  few  words,  is  this. 
Mr.  Stenart  purchases  a  negro 
alare  in  Virginia,  where  by  the  lav  of  tlie  place 
negroes  are  slaves,  and  saleable  as  other  pro- 
perty. He  comes  into  England,  and  bnngs 
the  negro  with  him.  Here  the  negro  leaves 
Mr.  fittenart's  senriee  without  his  consent; 
and  aiUrwards  persons  employed  by  him  seize 
the  negro,  and  forcibly  carry  him  on  board  a 
•hip  bound  to  Jamaica,  tor  the  avowed. pnr- 
pcse  of  transporting  him  to  that  island,  and 
tliere  selling  nim  as  a  slave.  On  an  applica- 
tion by  the  negro's  friends,  a  writ  of  Habeas 
Corpus  is  granted ;  and  in  obedience  to  the 
writ  he  is  i^odnced  before  this  court,  and  here 
anea  for  tiM  restitution  of  his  liberty. 

The  questions,  arising  on  this 

«?&?cm£  ^""^  ^^  '^  merely  conceni  the 
unfortunate  person,  who  is  the 
anlject  of  it,  and  such  as  are  or  may  be  under 
like  unhappy  circumstances.  They  are  highly 
interesting  to  the  whole  community,  and  cannot 
be  decided,  withoat  having  the  naost  general 

*  The  following  Argument,  on  the  behalf 
of  the  negro,  is  not  to  m  considered  as  a  speech 
actually  delivered :  for  though  the  author  of 
h,  who  was  one  of  the  counsel  for  the  negro, 
did  deliver  one  part  of  his  Argument  in  couct 
without  tlie  assistance  of  notes ;  yet  his  Aiga- 
meat,  as  here  publishpd,  is  entirely  a  written 
^omplfiiition.  This  drcumstanee  is  mentioned, 
Icat  the  author  shouhl  be  thought  to  daim  a 
Merit  lo  which  be  has  not  tbelaaat  title    Her- 


and  important  consequences;  vritbont  extensive 
influence  on  private  happiness  and  public  to- 
curity.  The  right  claimed  by  Mr.  Sleuart  to 
the  detention  of  the  negro,  is  founded  on  the 
condition  of  slavery,  in  which  he  was  before 
his  master  brought  him  into  England  ;  and  if 
that  right  is  here  recognised,  domestic  slaverv* 
with  its  horrid  train  of  evils,  may  be  lawfully 
imported  into  this  country,  at  the  discretion  oif 
every  individual  foreign  and  native.  It  will 
come  not  only  from  our  own  colonies,  and 
those  of  other  European  nations ;  but  from 
Poland,  Russia,  Spain,  and  Turkey,  from  the 
coast  of  Barbery,  from  the  western  and  eastern 
coasts  of  Africa,  from  every  part  of  the  world, 
where  it  still  continues  to  torment  and  dishonour 
the  human  species.  It  will  be  transmitted  to 
us  in  all  its  various  forms,  in  all  the  fi^radationa 
of  inventive  cruelty  :  and  by  an  universal  re- 
ception of  slavery,  this  country,  softmous  for 
public  liberty,  will  become  the  chief  seat  of  pri* 
vate  tyranny. 

In  speaking  on  this  case,  I  shall  ^^^^^  ^^i^^ 
arrange  my  observations  under  two  •'^  ^  ^^ 
heads.  First,  I  shall  consider  the  *^*^ 
right,  which  Mr.  Stenart  daims  in  the  persoB 
of  the  negro.  Secondly,  I  shall  examine  Mr* 
Steuart's  authority  to  enforce  that  right,  if  he 
has  any,  by  imprisonment  of  the  negro  and 
transporting  him  out  of  tiiis  kingdom.  The 
Court's  opinion  in  fovonr  of  the  negro,  on  either 
of  these  points,  will  entitle  him  to  a  dischaigt 
from  the  custody  of  Mr.  Stenart. 

(Irt.)  The  first  point,  concerning  ^^  ^^^^  ^ 
Mr.  Stenart's  right  in  the  person  of  J!^^'^' 
the  ne^,  is  the  great  one,  and  SieacirA 
that  which,  depending  on  a  variety  f"'^ 
of  considerations,  requires  the  peculiar  attention 
of  the  Court.  Whatever  Mr.  Steuart's  right 
may  be,  it  s|nings  out  of  the  condition  of 
slavery,  in  vihich  the  negro  was  before  his  ar- 
rival in  England,  and  wholly  depends  on  the 
continuance  of  that  relation;  the  power  of  im- 
prisoning at  pleasure  here,  and  of  transporting 
mto  a  foreign  country  for  sale  as  a  slave,  cer* 
Uinly  nnt  being  exerdseaUe  over  ,^  ^^ 
an  ordinary  servant.  Accordingly  <buiid«tioD  of 
the  return  foirly  admits  slavery  ^  ^^^^  «• 
to  be  the  sole  loundation  of  Mr. 
Stenart's  daim ;  and  this  brings  the  question^ 
as  to  the  present  lawfulness  of  slavery  in  Eng- 
land,  directly  before  the  Court.  It  would  have 
been  more  artful  to  have  asserted  Mr.  Steuart'g 
daim  m  terms  less  explicit,  and  to  have  stated 
the  stovery  of  the  negro  before  his  coming  into 
England,  roereljr  as  aground  for  claiming  him 
beie,  in  therdation  of  a  servant  bound  tofollow 
wherever  his  maater  should  require  his  service. 
The  case  represented  in  this  disguised  way, 
though  in  substance  the  same,  would  have  been 
less  darmiuff  in  iU  first  appearance,  and 
night  have  afforded  a  better  chance  of  evading 
the  true  question  between  the  partiea.  But 
this  artifice,  howeverconvenient  Mr.  Steuart'i 
conned  may  find  it  in  amment,  has  not  been 
adopted  in  the  return;  the  caae  being  there 
■tatid  M  it  really  is,  wiUiinit  iny  auppriwion 


The  Negro  Cau. 

.    .  i  «aitoe»1  ttic  ([rest  extent  of  Mr. 

■  cfaim,   or  any  calouhnK  ot'IanfCiiaei^ 
s  reiiures  of  slsT«ry  iu  the 
f  ttti  nrdiunry  aemnl. 
^^_  Bejiire  I    tniep    upon    Ihe  en- 

iHMi  m  lairy  into  llic  preienl  iBwfulnfss  of 
J^  alaTcry  in  Enclnnil,  I  lliink  Jlnf- 

t^esMry  la  make  soDie  general  ob- 
MTUiavi  «ii  (Ufery.  1  mein  liowefer  al- 
nnu  kfipp  in  licw  ilavery,  Dot  as  it  ia  in  tlie 
friibanaC*  luhjeotloan  M«otule  prince,  but 
mIj  m  U  ia  in  llie  relation  of  Ihe  lowed  speciei 
rfMrraM  <o  lit*  maaler,  in  any  aiate,  nhetber 
firtvr  Mberwiae  in  in  rorm  of  governmenl. 
QbI  coMfamoa  lias  ensunl  from  diaennrBing' 
«A«ery,  without  due  altenlion  (o  tlie  ili^ 
fcanee  Mween  the  Jesnoiiitm  of  a  sovereign 
a*«ra  vliolt  people  and  tlial  of  oue  subject 
nm  ■■■Iber.  The  former  la  foreipi  li>  the 
fnMVl  ea>« ;  and  therefore  when  1  am  de- 
•oiliiayrfBvery.or  obsFrfing  upon  il,  I  desire 
••  be  nadcrtfood  aa  ciiiifintng  mvEdf  tu  the 
lalln-t  Ikoogh  from  the  conneclion  belwecii 
keiiraaubrMU,  anmeof  myobservaliona  may 
farhapa  be  applicable  to  butli. 
TT  ,    ^  Slavery    hai    been   attended    in 

Maatiu.  dilfereiil  cnunlries  witli  circnm- 
*'■  Mancea  so   larious,  aa  to  render  it 

Mcnit  t9  EtTC  u  ^^neral  description  of  il. 
TWRmbkii  lawyer  (a)  calls  slavery,  a  couati- 
tmtm  of  the  taw  ul'  nalinns,  by  nlilch  one  is 
■air  aiabfMl  to  anollitr  contrary  to  nature. 
Ibo  tlw^  as  has  heco  often  observed  by  the 
maraiuiatiMi,  is  mistabing  ihe  law,  by  which 
ibtfj  ta  conitituied,  for  alavery  ilaelf,  the 
WM  fat  tha  effect ;  Ihough  il  mast  he  con- 
fBal,Uiat  the  latter  part  of  the  definition  nb- 
■Hrfj  hiol*  at  Ihe  nature  of  alavery.  OrDtlua 
W  fcalrihiaalavery  to  be,  an  obligatinn  to  lerre 
•BsAv  for  life,  in  conaideraiion  of  being  aup- 
fW  iMi  Ihe  bars  neeeisariet  of  lile.  Di'. 
KaikrfinI  (<-)  r 


«Am  dcininit  detuotisni  to  be  an  alienable 
ncte  ha  direct  alt  the  actions  of  another,  frnin 
rtaac(  cMMludea,  ihal  perfect  slavery  is  an 
rM<pli>w  10  be  so  directed.  Thia  last  detini- 
tMa  any  aMte  in  convey  a  general  idea  of 
<lit«fj}  but  like  that  by  Grolius,  and  many 
■tbar  dafiaUoni  which  I  have  seen,  if  uoder- 
•nud  Mricdj,  will  scarce  suit  any  species  of 
slavery,  W  which  it  is  applied.  Besides,  il 
avM  ottcafalavcry'*  severest  and  most  usual 
tadilients  t  ibcqnaliu,  by  which  it  involves  all 
Ika  ta«e  m  the  iDisfurlune  of  (he  pareut.  In 
Iralk,  M  I  have  already  hinted,  the  variety  of 
fciiwa.  in  wliieta  ilavery  ap|>ean,  tnakei  it  al- 
Mat  iiBpoaalfale  to  convey  a  Jiisl  notion  of  it  In 
■lie  KBT  of  drltnilioa.  There  are  however 
-  i|>'rii*a,   which    have    accomjiauied 


-  111).  1,  111.  S,  I.  ♦,  a.  1,  '  Serv'riua 
I  iiirujunagvntiuni,  ^nft  quia  duini- 
u  evnira  ualoram  auhjicitur.* 

MJ  Jar.  B»ll.  Kb.  'J.  o.  i.  ..  j(T. 

^3  iMt-Nal.  L.  b.  l,e.tn,f.  474. 


A.  D.  1771. 
ilavery  in  mosl  placet ;  and  by  altendiD|r  ia 
these,  we  may  always  distinguish  i I,  front  lh» 
mild  speciea  of  domeatic  service  so  common 
and  well  known  in  our  own  country.  I  shall 
shortly  enumeralethe  most  remarkable  of  ihosa 
properlies;  |iHrticularly,  such  as  cliaracterize 
ihe  specie  of  slavery  adopted  in  our  American 
colooies,  being  that  now  under  the  considera- 
tion of  this  conrt.  This  I  do,  in  order  thai  a 
just  conception  may  be  formed,  of  the  propriely 
with  which  I  shall  impute  to  slavery  the  most 
pernicious  effecls.  Without  such  a  previous 
explsnation,  the  most  solid  objectiona  to  (be 
permission  of  slavery  will  have  ibe  appearance 
of  nnmeening,  though  s|ie('ious,  declainalion. 

Slavery  always  imports  an  obli-  tmixnia 
gation  of  perpetual  service;  an  unKjirm- 
ohligation,  which  only  the  conaent  u^!)^.'' 
of  the  mailer  can  dissolve.— It  ge- 
nerally  gives  to  the  mailer,  an  arbitrary  power 
of  ad miaielering  every  anrt  of  correction,  liow< 
ever  inhuman,  not  immediately  afltcliug  tbe 
life  or  limb  of  Ihe  slave :  sDmelimes  even  these 
are  leQ  exposed  to  the  arbitrary  will  of  tha 
master ;  or  they  are  protected  liy  fines,  and 
other  slight  poniabmeuta,  too  iocooaiderable  to 
reatraio  the  master's  inhnmanity. — It  creates 
an  incapacity  of  aeqniriag,  except  lor  the 
roaster's  benefit.— Il  allows  the  mailer  to  alie- 
nate Ihe  pei«on  of  the  slave,  in  the  aaiue  man* 
ntr  as  other  propeHy.— Lastly,  it  descenda 
from  parent  to  child,  with  Jail  its  setere  ap- 
penilages.^ — On  the  most  accurate  comparison, 
there  will  be  found  nothing  exaggerated  in  this 
repreaentBtion  of  slavery.  The  description 
agrees  with  almost  every  kind  of  slavt'ry,  for- 
merly or  now  existing;  except  only  that  rem- 
nant of  the  ancient  slavery,  which  sllll  lingers 
in  some  parts  of  Europe,  but  qualified  and 
moderate/ in  favour  of  the  slave  by  the  hu< 
raane  grovisinn  of  modern  times. 

From  this  view  of  the  condition 
of  slavery,  il  will  bo  easy  to  deriie  "Ji,*^^." 
ils  destructive  consequences. — It 
corrupts  the  morals  ol  the  master,  by  freeing 
him  from  those  restraints  with  respect  to  his 
slave,  so  necessary  for  controul  of  the  human 
passions,  so  beneficial  in  promoting  the  prac- 
tice and  confirming  Ihe  habit  of  virtue. — It  is 
dangerous  to  the  master ;  because  his  oppres- 
sion excites  implacsble  resentment  and  hatred 
in  Ihe  slave,  and  tha  extreme  minery  of  his 
condition  continually  {prompts  him  to  risk  tha 
gratification  of  them,  and  his  situation  daily 
fumishea  the  opporluniiy — To  the  slave  it 
communiuates  all  the  afiliclionw  of  life,  wilhout 
leaving  for  him  scarce  any  of  its  nieasurea ; 
and  it  depressea  the  excellence  of  his  nature, 
by  denying  the  ordinarv  means  and  motives  of 
improvement.  Il  is  dangerous  to  the  state, 
by  its  corruption  of  those  citizens  on  whom  ila 
prDsperily  depends  ;  and  by  adnnlling  within 
II  a  multitude  of  peraotis,  wlm  being  excluded 
from  tbe  common  beneliiB  of  the  conatitution, 
are  inlerealed  in  scheming  its  destruction. — 
Hence  it  ia,  that  slavery,  in  whatever  tighl  wa 
view  it,  may  b«  deemed  ■  most  pernicious  ia- 


27] 


12  GEORGE  III. 


The  Negro  Case. 


[28 


stitution:  immediately  so,  to  the  unhappy 
person  who  suffers  under  it ;  finally  so,  to  the 
master  who  triumphs  in  it,  and  to  the  state 
which  allows  it. 

opioiooof  However,  I  m«st  confess,  that 

aome  modem  notwithstanding  the  force  of  the 
£^"0°  the  reasons  against  the  allowance  of 
miuiy  of  »ui-    domestic  slavery,  there  are  civiUans 

TCTf,  but  un-         _  ••/        ■        •      •  ^ 

derntnyrc-  of  great  Credit,  who  insist  upon 
•iricuoiu.         1^  u^-jjiy  .    founding   themselves 

chiefly,  on  the  supposed  increase  of  rohhers 
and  b^gars  in  consequence  of  its  disuse.  This 
opinion  is  favoured  by  Puffendorf  (d)  ai|d 
Ulricus  Huberus  (e).  In  the  dissertation  on 
slavery  prefixed  to  Potgiesserus  on  the  German 
law  *  de  statu  servorum,'  the  opinion  is  exa- 
mined minutely  and  defended.  To  this  opi- 
nion I  oppose  those  ill  consequences,  which  I 
have  already  represented  as  almost  neces- 
sarily flowing  from  the  permission  of  domestic 
slavery  ;  the  numerous  testimonies  Sjpainst  it, 
which  are  to  be  found  in  ancient  ana  modem 
history ;  and  the  example  of  those  European 
nations,  which  have  suppressed  the  use  of  it, 
after  the  experience  of  many  centuries  and  in 
the  more  improved  stale  of  society.  In  jus- 
tice also  to  the  writers  just  mentioned  1  must 
add,  *that  though  they  contend  for  the  advan- 
tages of  domestic  slavery,  they  do  not  seem  to 
apnrove  of  it,  in  the  form  and  extent  in  which 
it  has  generally  been  received,  but  under  limi- 
tations, which  would  certainly  render  it  far 
more  tolerable.  Huberus  in  his  Eunomia 
Romana  {/)  has  a  remarkable  passage,  in 
which,  after  recommending  a  mild  slavery,  he 
cautiously  distinguishes  it  from  that  cruel  spe- 
cies, the  subject  of  commerce  between  Africa 
and  America.  His  words  are,  *  loqoor  de  ser- 
vitute,  qualis  apud  civiliores  populos  in  usu 
fuit;  nee  enim  exempla  barbarorum,  vel  qua 
nunc  ab  Africft  in  Americam  fiunt  hominum 
commercia,  velim  mihi  quisqiiam  objiciat.' 
•ritiaortu.  The  great  ongin  of  slavery  is 
very*  f?**^'^  captivity  in  war,  though  sometimes 
iuiMrn  coui-  it  lias  Commenced  by  contract.  It 
^^'  has  been  a  question  much  agitated, 

whether  either  of  these  foundations  of  slavery 
is  consistent  with  natural  justice.  It  would  be 
engaging  in  too  large  a  field  of  enquiry,  to  at- 
tempt reasoning  on  the  general  lawfulness  of 
slavery.  I  trust  too,  that  the  liberty,  tor  which 
I  am  contending,  doth  not  require  such  a  dis- 
quisition ;  and  am  impatient  to  reach  that  part 
of  my  argument,  in  which  I  hope  to  prove 
slavery  reprobated  by  the  law  of  England  as 
an  inconvenient  thing.  Here  therefore  I  shall 
only  refer  to  some  of  the  most  eminent  writers, 
who  have  examined,  how  far  slavery  founded 
on  captivity  or  contract  is  conformable  to  the 
law  of  nature,  and  shall  just  hint  at  the  reasons, 
which  influence  their  several  opinions.  The 
antient  writers  suppose  the  right  of  killing  an 

(d)  Law  of  Nature  and  NaUoDS,  b.  6,  0. 3, 
1. 10. 
(t)  Prelect.  Jur.  Cir.  p.  16. 
(/)  See  page  48. 


enemy  vanquished  in  a  just  war ;  and  thence 
infer  the  right  of  enslaving  him.  In  this  opi- 
nion, founded,  as  I  presume,  on  the  idea  of  pu- 
nishing the  enemj  for  his  injustice,  they  are 
followed  by  Albericus  Gentilis  (g),  Grotius  (A)^ 
Puffendorf  (i),  Bynkershoek  Q),  and  many 
others.  But  in  <  The  Spirit  of  Laws'  (k)ihe 
right  of  killing  is  denied,  except  in  case  of  ab- 
solute necessity  and  for  self-preservation. 
However,  where  a  country  is  conquered,  the 
author  seems  to  admit  the  conqueror's  right  of 
enslaving  for  a  short  time,  that  is,  till  the  con- 
quest is  effectually  secured.  Dr.  Rutherforth, 
(/)  not  satisfied  with  the  right  of  killing  a  van- 
quished enemy,  infers  the  right  of  enslaving 
him,  from  the  conqueror's  right  to  a  reparatioa 
in  damages  for  the  expences  of  the  war.  I  do 
not  know,  that  this  doctrine  has  been  exa- 
mined ;  but  I  must  observe,  that  it  seems  only 
to  warrant  a  temporary  slavery,  till  reparatioa 
is  obtained  from  the  property  or  personal  la- 
bour of  the  people  conquered.  The  lawfulness 
of  slavery  bV  contract  is  assented  to  by  Grotius 
and  Puffendorf  (in),  who  found  themselves  on 
the  maintenance  of  the  slave,  which  is  the  con- 
sideration moving  from  the  master.  But  a 
very  great  writer  of  our  own  country,  who  is 
now  living,  controverts  (n)  the  sufficiency  of 

(g)  De  Jur.  Gent.  cap.  de  servitute. 

(h)  De  Jur.  Bell.  1.  3,  c.  7,  s.  5. 

(i)  Law  of  Nature  and  Nations,  b.  6,  c.  3, 

8.6. 

(j)  Qufest.  Jur.  Publ.  I.  1,  t.  3. 

(k)  B.  15,  c.  2. 

(I)  See  his  Inst.  Nat.  Law,  vol.  2,  p.  573, 
and  vol.  1,  p.  481. 

(m)  See  Grot.  Jur.  Bell.  1.  3»  c.  5,  s.  1,  2, 
and  Puff.  Law  of  Nature  and  Nations,  b.  6» 
c.  3,  s.  4. 

(n)  See  Blackst.  Comment  1st  ed.  vol.  1, 
p.  412. 

The  authority  of  Mr.  Justice  Blackstone 
having  been  cited  both  for  and  against  the 
rights  of  persons  claiming  to  be  the  owners  of 
slaves  in  Great  Britain,  1  have  thought  it  worth 
while  to  insert  together  all  that  I  find  relating 
to  the  subject  in  his  Commentaries: 

*'  The  spirit  of  liberty  is  so  deeply  implanted 
in  our  constitution,  androoted  even  in  our  very 
soil,  that  a  slave  or  a  negro,  the  moment  he  lands 
in  England,  falls  under  the  protection  of  the 
laws,  and  so  far  becomes  a  freeman ;  though 
the  master's  nght  to  his  service  may  possibly 
still  continue."    Vol.  l,  p.  127. 

**  I  have  formerly  observed  that  pure  and 
proper  slavery  does  not,  nay  cannot,  subsist  in 
England  ;  such  1  mean,  whereby  an  absolute 
and  unlimited  power  is  given  to  the  master  over 
the  life  and  fortune  of  the  slave.  And  indeed 
it  is  repugnant  to  reason,  and  the  principles  of 
natural  law,  that  such  a  state  should  subsist 
any  where.  The  three  origins  of  the  nf(i\i  of 
slavery,  assigned  by  Justinian,  are  all  ot  them 
built  upon  false  foundations.  As,  first,  slavery 
is  held  to  arise  '  jure  gentium,'  from  a  state  of 
captivity  in  war;  whence  sltTei  are  called 


B]  The  Negro  Case. 

inch  i  oontiderakion.    Mr.  Locke  has  framed 
aaoUicr   kind   of  argument    against  slarery 

« nasftpia,  ^aasi  mann  capti.'  The  conqueror, 
njike  civilians,  had  a  right  to  the  life  of  his 
o^;  and,  having  spared  that,  has  a  right 
bdctl  with  him  as  be  pleases.  But  it  is  an 
Btroe  nontion,  when  taken  generally,  that, 
if^  the  law  of  nature  or  nations,  a  man  may 
kill  bis  enemy :  he  has  only  a  right  to  kill  him, 
IB  particular  cases ;  in  cases  of  absolute  ne- 
ccHity,  for  8elf-«1efeDce;  and  it  is  plain  this 
ibnlute  necessity  did  not  subsist,  since  the 
Ticlor  did  not  actually  kill  him,  but  made  him 
prisoner.  War  is  itself  justifiable  only  on  prin- 
ciples of  teif-preser? ation ;  and  therefore  it 
gires  no  other  right  over  prisoners  but  merely 
to  disable  them  from  doing  harm  to  us,  by  con- 
fiaiog  their  persons :  much  less  can  it  give  a 
right  to  kiU|  torture,  abuse,  plunder,  or  even  to 
cnUve,  an  enemy,  when  the  war  is  o?er. 
Saoe  tlierefore  the  righ(  of  making  slaves  by 
ctptivity  depends  on  a  supposed  right  of 
daaghter,  that  foundation  failing,  theconse- 
^ocnee  drawn  from  it  must  fail  likewise.  But, 
SKOiidly,  it  is  said  that  slavery  may  begni  *  jure 
'  dvili ;'  when  one  man  sells  hiipself  to  ano- 
ther. This,  if  only  meant  of  contracts  to  serve 
«r  work  for  another,  is  very  just :  but  when 
applied  to  strict  slavery,  in  the  sense  of  the 
laws  of  old  Rome  or  modem  Barbary,  is  also 
iaipossible.  Every  sale  implies  a  urice,  a 
'  ^oid  pro  quo,'  an  equivalent  given  to  tne  seller 
is  lien  of  what  he  transfers  to  the  buyer :  but 
what  equivalent  can  be  given  for  life,  and 
Acrty,  both  of  which  (in  absolute  slavery)  are 
hcUio  be  in  the  master's  disposal?  His  pro- 
foij  slso,  the  very  price  he  seems  to  receive, 

devvtrcs  ipsojacto  to  bis  master,  the  instant  he 
hKomts  his  slave.  In  this  case  therefore  the 
frojff  gives  nothing,  and  the  seller  receives  no- 
ibro);:  of  what  validity  then  can  a  sale  be, 
vkich  destroys  the  very  principles  upon  which 
111  sales  are  founded?  Lastly,  we  are  told, 
that  besides  these  two  ways  by  which  slaves 
'  6ant,'  or  are  acquired,  they  may  also  lie  here- 
diury  :  *  servi  nascuntur ;'  the  children  of  ac- 
quirecl  slaves  are,  *  jure  nature'  by  a  negative 
kiul  of  birthright,  slaves  also.  But  this,  being 
built  on  the  two  former  rights,  must  fall  together 
with  them.  If  neither  captivity,  nor  the  sale 
of  one's  self,  can  by  the  law  of  nature  and 
reason  reduce  the  parent  to  slavery,  mpch  less 
cau  they  reduce  the  oflfsiprint;. 

*'  Upon  thr«e  principles  the  law  of  England 
abhors,  and  will  not  endure  the  existence  of, 
•Uver}'  within  this  nation  :  so  that  when  an  at- 
trcopt  was  made  to  introduce  it,  by  statute 
1  £dw.  6,  c.  3,  which  ordained,  that  all  idle 
vi^bonds  should  be  made  slaves,  and  fed  upon 
brrad,  water,  or  small  drink,  and  refuse  meat ; 
should  wear  a  ring  of  iron  round  their  necks, 
armig  or  legs;  and  should  be  compelled  by 
beating,  chaining,  or  otherwise,  to  perform  the 
work  assigned  them,  were  it  never  so  vile ;  the 
sphitoftlie  nation  could  not  brook  thiscondi- 
tiOB,  even  in  tho  most  abandoned  rogues;  and 


A.  D.  1771. 


[30 


I 


by  contract  (o) ;  and  the  substance  of  it  is, 
that  a  right  of  preserving  life  is  unalienable  ; 
that  freedom  from  arbitrary  power  is  essential 
"to  the  exercise  of  that  right;  and  therefore, 
that  no  man  can  by  compact  enslave  himself. 
Dr.  Rutherforth  (p)  endeavours  to  answer  Mr. 
Locke's  objection,  oy  insisting  on  various  limi- 
tations to  the  despotism  of  the  master ;  parti* 
cularlyi  that  he  has  no  right  to  dispose  of  the 
slave's  life  at  pleasure.  But  the  misfortune  of 
this  reasoning  is,  that  though  the  contract  can- 
not justly  convey  an  arbitrary  power  over  the 
slave's  life,  yet  it  generally  leaves  him  without 
a  security  against  the  exercise  of  that  or  any 
other  power.  I  shall  say  nothing  of  slavery 
by  birth ;  except  that  the  slavery  of  the  child 
must  be  unlawful,  if  that  of  the  parent  cannot 
be  justified ;  and  that  when  slavery  is  extended 
to  the  issue,  as  it  usually  is,  it  may  be  unlawful 
as  to  them,  even  though  it  is  not  so  as  to  their 
parents.  In  respect  to  -slavery  used  for  tho 
punishment  of  crimes  against  civil  society,  it  is 
founded  on  the  same  necessity,  as  the  right  of 
inflicting  other  punishments ;  never  extends  to 
the  offender's  issue ;  and  seldom  is  permitted 
to  be  domestic,  the  objects  of  it  being  g^ene- 
rally  employed  in  public  works,  as  the  galley- 

therefore  this  statute  was  repealed  in  two  years 
afterwards.  And  now  it  is  laid  down,  that  a 
slave  or  negro,  the  instant  he  lands  in  Engkiod, 
becomes  a  freeman ;  that  is,  the  law  will  pro« 
tect  him  in  the  enjoyment  of  his  person,  and 
his  property.  Yet,  with  regard  to  any  right 
which  the  master  may  have  lawfully  acquired 
to  the  perpetual  service  of  John  or  Thomas, 
this  will  remain  exactly  in  the  same  state  as 
before ;  for  this  is  no  more  than  the  same  stato 
of  subjection  for  life,  which  every  apprentice 
submits  to  for  the  space  of  seven  years,  or 
sometimes  for  a  longer  term.  Hence  too  it 
follows,  that  the  infamous  and  unchristian  prac- 
tice of  withholding  baptism  from  negro  ser- 
vants^  lest  they  should  thereby  gain  their  li- 
berty, is  totally  without  foundation,  as  well  as 
without  excuse.  The  law  of  England  acts 
upon  general  and  extensive  principles :  it  gives 
liberty,  rightly  understood,  that  is,  protection, 
to  a  Jew,  a  Turk,  or  a  Heathen,  as  well  as  to 
those  who  profess  the  true  religion  of  Christ ; 
and  it  will  not  dissolve  a  civil  obligation  be- 
tween master  and  servant,  on  account  of  the 
alteration  of  faith  in  either  of  the  parties: 
but  the  slave  is  entitled  to  the  same  |>rotec- 
tion  in  England  before,  as  aAer,  baptism ; 
and,  wliatevf  r  service  the  heathen  negro  owed 
of  right  to  his  American  master,  by  general 
not  hy  lociil  law,  the  same  (whatever  it  be)  is 
he  bound  to  render  when  bruoght  to  England 
and  made  a  Christian."    Vol.  1,  p.  423. 

In  these  passages,  there  appears  to  be  some- 
what of  very  subtle  distinction,  if  not  rather  of 
contradictiuii. 

(o)  See  Locke  on  Governm.  8vo  edit.  b.  9, 
c.  4,  p.  213. 
(p)  See  his  Inst  Nat.  Law,  vol.  1,  p.  480. 


31] 


12  6E0BGB  III. 


The  Nqpro  Case. 


[32 


sltFes  are  in  France.  Gonaeqaently  ihia  kind 
of  slavery  is  not  Kable  to  the  principal  objeo- 
lions,  which  occur  affainstsbiTefy  in  giDen\{q), 
Upon  the  whole  of  this  controFersy  concerning 

(g)  Some  writers  there  are,  who  deduce  the 
lawfulness  of  domestic  slavery  from  the  prac* 
tiee  of  it  amongst  the  Jews,  ind  from  some 
passages  in  the  Old  Testament  which  are 
thought  to  conntenanoe  it.  See  Vinn.  in  Instit 
Heineoc.  ed.  1. 1,  t  3,  p.  31.  There  are  others 
who  attempt  to  justify  slavery  by  the  New 
Testament,  because  it  contains  no  direct  pre- 
cepts against  it  See  Tkyl.  Elem.  Cir.  L.  434. 
I— I  shul  not  attempt  to  examine  either  of  these 
opinions.— JBargrove. 

In  the  discussions  respecting  the  African 
■lave  trade,  which  were  maintained  during  se- 
reral  years  preceding  the  abolition  of  that 
traffic  (by  stat.  46  Geo.  3,  c.  58,  see  also 
c.  119,  and  51  0.3,  c.  93),  the  authority  of  the 
scriptures  was  appealed  to  by  the  oppugners 
and  defenders  of  the  trade.  On  June  24, 1806, 
the  learned  and  eloquent  Dr.  Horsley,  bishop 
of  St  Asaph,  ddiveced  in  the  House  of  Lords 
upon  the  subject,  every  powerful  speech,  from 
which  I  have  extracted  the  following  passages. 

*'  My  rev.  brother"  (the  bishop  of  London) 
*'  told  your  lordships,  that  perpetual  slavery 
was  not  permitted  by  the  Jewuh  law.  That  a 
native  Jew  could  be  held  in  slavery  for  seven 
years  only,  at  the  longest.  For  he  Lad  a  right 
to  his  freedom  upon  toe  first  return  of  the  sab- 
batical year.  And  that  a  ibrei^  slave  pur- 
chased in  the  market,  or  captivated  in  war, 
eould  be  held  in  slaveiy  for  fifty  years  onljr,  at 
the  longest.  For  the  foreign  slave  had  a  right 
to  bis  freedom  upon  the  first  return  of  the  year 
of  Jubilee.  And  from  these  premises,  my  rev. 
tirother  concluded,  that  perpetual  slavery  was 
unknown  among  the  Jews. 

'*  I  confess,  I  was  carried  away  by  the  fair 
appearance  of  my  rev.  brother's  aiguments, 
tib,  to  my  great  surprise  and  his  utter  confu* 
•M>n,  the  noble  earl  (of  Westmoreland)  rose, 
with  his  Bible  in  his  hand,  and  quoted  chapter 
and  Terse  against  him ! 

**  My  lords,  with  respect  to  the  luUive 
Hebrew  slave,  we  have  this  law,  which  was 
qaoted  by  my  rev.  brother :  *  If  thy  brother, 

*  an  Hebrew  man,  or  an  Hebrew  woman,  be 

<  soM  unto  thee,  and  serve  thee  six  years,  then 

*  in  the  seventh  thou  shalt  let  him  go  free  from 

<  thc».    And  when  thou  sendest  nim  out  free  I 

*  from  thee,  thou  shalt  not  let  him  go  away 

*  empty.    Thou  shalt  furnish   him   liberally 
'  ont  of  thy  flock,  and  out  of  thy  flour,  and  out 

*  of  thy  wine-press.    Of  that  wherewith  the 
«  Lord  thy  God  hath  blessed  thee,  thoa  shalt 

*  give  unto  him.'    Dent  xv.  19 — 14. 

*<  And  with  respect  to  the  foreign  slave,  we 
have  this  law,  quoted  likewise  by  my  rev.  bro- 
ther :   *  Thou  shalt  number  unto  thee  seven 

*  sabbaths  of  years,  forty  and  nine  years.    Then 
■ahaltthon  cause  the  trampet  of  the  jubilee  to 

*  sound  throughout  all  the  land.    And  ye  shall 
'  hallow  the  fiftieth  year,  and  proolaim  liberty 


skverr,  T  think  mvsdf  warranled  in  saying, 
that  the  justice  andlawfuhiess  of  every  species 
of  it,  as  it  is  generally  constituted,  except  the 
limited  one   rounded  on  the  commission  of 

*  throughout  all  the  huid,  to  all  the  inhabitanti 

*  thereof.'    Lev.  xxv.  8—10. 

«  The  manumission  of  the  Hebrew  slave  on 
the  seventh  year,  was  provided  for  by  the  other 
law.  Under  the  expression,  therefore,  of  all  the 
inhabitants,  foreign  slaves  must  be  eompro* 
bended ;  for  none  but  foreign  slaves  could  re* 
main  to  be  manumitted  in  the  fiftieth  year. 

**  My  brds,  there  is  a  circumstance  not 
touched  upon  by  my  rev.  brother ;  but  there  is 
a  passage  in  tlie  law,  which  1  have  always 
considered,  as  a  strong  argument  of  the  lenity, 
with  which  slaves  vrere  treated  among  the 
Jews,  and  of  the  efficacy  of  the  provisions  the 
law  had  made,  to  obviate  the  wrongs  and  iniu* 
ries  to  which  the  condition  is  obnoxious. — ^My 
lords,  I  am  afraid  I  cannot,  by  memory,  refer 
exactlj^  to  the  place.  But  the  noble  earl  there, 
with  his  BiUe,  I  am  sure  will  have  the  good- 
ness to  help  me  out  and  turn  up  the  passage 
for  me.  Mj^  lords,  it  is  a  passage,  in  which 
the  law  provides  for  the  casA.  of  a  slave,  who 
should  be  so  attached  to  his  master,  that  when 
the  term  of  manumission,  fixed  by  the  law 
shouM  arrive,  the  slave  slionid  be  disinclined 
to  take  advantage  of  it,  and  wish  to  remain 
with  his  master.  And  the  law  prescribes  the 
form,  in  such  case  to  be  used,  by  which  the 
master  and  the  slave  should  reciprocally  bind 
themselves,  the  slave  to  remain  with  bis  master 
for  life,  and  the  master  to  maintain  him.  This 
I  have  always  considered  as  a  strong  inUicatioo 
of  the  kindness,  with  which  slaves  were  treated 
among  the  Jews ;  else  whence  should  arise  that 
attachment,  which  this  law  supposes  ?"  [Query 
if  the  bishop  had  in  his  mind  the  begioDing  of 
the  21st  chapter  of  Exodus,  if  so,  the  words 
are  '  he  shall  serve  him  for  ever.'] 

**  But  we  are  all  in  the  wrong,  it  seems — my 
rev.  brother  and  I*-we  reason  from  specious 
premises,  but  to  false  conclusions.  The  noble 
eari  has  produced  to  your  lordships  a  pasMge 
in  the  Leviticai  law,  which  enacts  that  the 
foreign  slave  should  be  the  property  of  bis 
master  for  ever.  Whence  the  noble  earl  con- 
cludes that  the  perpetual  servitude  of  foreign 
slaves  was  actually  sanctioned  by  the  law. 
But,  my  lords,  I  must  tell  the  noble  earl,  and  I 
must  Ml  your  lordsliips,  that  the  noble  earl  hao 
understanding  at  all  of  the  technical  terms  of 
the  Jewish  law.  In  all  the  laws  relating  to  the 
transfer  of  property,  the  words  '  for  ever,* 
signify  only  *  to  the  next  jubilee.'  That  is 
the  longest  *  for  ever'  which  the  Jewish  law 
knows  with  respect  to  property.  And  this  law, 
which  makes  the  foreign  slave  the  property  of 
his  master  for  ever,  makes  him  no  louger  tho 
master's  property  than  to  the  next  jubilee. 
And,  with  the  great  attention  the  noble  earl  hao 
given  to  the  laws  and  hiatory  of  the  Jews,  ho 
moat  know,  that  when  tboy  were  carried  into 
eaptiviiy,  they  were  loldby  thwr  prophets,  that 


The  Negro  Cate. 

citil  Mriely,  ii  ai  Icasl  doublfot ; 
kwfiil,  audi  circumttancei 
tke  it  311,  an  selJoD)  coucur, 
^^ .  B  jiirt  cominencenieDt  of 

it  M|  pooiblr  ;  sod  ihat  Ibe  oppressive 
■•MI  ia  whkb  it  bu  geiwrnti)'  commeDcei), 
•rcTvd  inf«iii  ncc^Naty  lo  enforce  ils  con- 
■■MM,  aod  the  tnischier*  eusuiiit;'  fmiD  llie 
fOTMNlrMt  of  il,  funub  Tery  tirnug  presump- 
■MJHwuM  ill  Justtcc.  tnil  al  all  erenlBeiiuce 
i*  hMDanily  aud  policy  ol'  those  stales,  in 
itith  Iha  MM  of  il  19  III)  longer  tolerated. 
J     „f  I,  But  howecer  reasonable  il  may 

•  ■^i^w  be  lo  Joobt  the  justice  of  domestic 
^5  te  ila*ery,  linwcTer  conrinced  we 
^"■^  may  be  of  ils  ill  effecis,  it  miiEt  be 

tmtmmi,  thai  ibe  practice  is  aulieni,  and  has 
Ida  ahniMl  nniienal.  Its  begiooing  tnay  be 
Imd  6vm  Ili«  retnoleit  |ieriad,  in  which  there 
wc  »my  ItBCM  of  the  history  of  mankind.  It 
— im  n  I  it  in  ihe  harbaroiis  slat«  of  society, 
■ri  wM  ntalsed,  efeu  wlieii  men  were  Tar  ad- 
wriit  in  diilizalitin.  The  nnlinns  of  anti- 
faiy  OMMt  fiiiDiiUB  for  cuunleiiincing  the 
MrBof  doMTilioalavery  were  Ibe  Jews,  the 
OwA*.  till!  Romans,  atxl  the  antieot  Ger- 
MM^r) ;  «E)King«i  all  of  whom  it  preTailed, 
!•■■  Tarioua<le^ee>  nrEeTerity.  By  thean- 
linlG«TniftB*  il  was  conlinued  la  the  connlriM 
tmf  «*cr-nRi  i  and  so  was  trauamitled  to  the 
j_  rariuua     kinird<"ns     aud     italn, 

Mnaa  which  arose  in  Europe  out  nf  the 

■^•^  ruin*  of  Ihe  lliiman  em|iire.     At 

tm^lli  b(M*«*«r  it  fell  into  decline  in  mott 
MS  of  Knrope  ;    and  amongst  Ihe  Tarious 


•Mof  ibe  Crimea  which  drew  down  Ihatjudg- 
MM^Mt  tbeni,  was  their  gross  neglect  and 
mJMm  of  these  merciful  laws  respecting 
^■■MoaiMi.  And  that,  in  contempt  and  de- 
teeraf  ibe  latr,  il  had  been  ihtir  practice  to 
hMlbcir  ForeigD  slaves  >n  lervilude  beycnd 
teyMr  of  jubilee." 

-  ■  ■  -My  lords,  allhottgh  ivehare  noex- 
(fail  prabilHtiun  of  tho  slave  trade  in  the  New 
nMMnral,  we  have  a  moat  express  lejirobati on 
If  iha  Irsd*  tn  alnves,  even  in  that  milder  form, 
«  •hidh  it  auhftisled  in  ancient  times.  Such 
a  nyfrAatiaa  of  it  as  leaves  no  believer  al 
Bnty  tv  a*j.  ihat  llir  shve  trade  is  not  coo- 
iSMBgJ  by  lli«  goapel.  The  rKverend  prelate 
a^  Mc'lia*  citrd  the  (Msaags  [t  Tim.  i, 
f— to)  ■*>  which  St.  1*8111  nienlions  '  men- 
Milan*  Bmnaig  tht  f[realrst  miscreanlt.  *  Men- 
iailiis'  ao  «•  read  in  our  En^li«h  Bilite. 
Rol  lh«  iBMil  ill  the  original  is  Attfu-niieatt. 
ttlmrihcir  '*  Kuraliy  a  '  date  trader,'  and 
ki  Mbrr  tinnl  in  the  Eniflish  lauguatie,  bul 
daw  iraihrr,  fireriaely  readers  it.  Il  waa  I'n- 
^■i4  Mv  irchnlMl  name  for  a  lUv e  trader  in 
•■  ttrie  h-." 

(r)  It  apiwara  by  CKMr  and  Taciloa,  that 
haaacirai  Gmaan*  had  ■  hind  at  slates  be. 
%n  th^y  rmsitralf^  front  tlirir  own  courilry. 
WC«a.ilc  Ball.  Gall.  lib.  6,  cap.  13,  el  Tac. 
it  Mm.  (ierman.  cap.  114,  M  Si.  et  Fulgieaa. 
4«aL  avrvttr.  af.  Cmui.  bb.  1,  C8[>.  I. 

KjroL.  XX. 


A.  D.  1771. 

caaan,  which  contributed  to  this  alteration, 
none  were  probably  more  effectual,  than  ex- 
perience of  the  diaadvanlages  of  slaiery  ;  iha 
difficulty  of  coQijnuing  il ;  and  a  persuasion 
that  llie  cruelly  and  oppression  almost  neces- 
sarily incident  lo  il  were  irreconcilable  with  the 
pure  morality  of  the  Christian  dispensation. 
The  history  of  iu  declioo  in  Europe  has  lieea 
traced  by  many  eminent  writers,  parliculsrly 
BodiD(!),  Albericus  Gentilifi  (f),  Potgiesserus  (u). 
Dr.  Itoberlson  {b'),  and  Mr.  Millar  (.r).  It  i» 
sufiicienl  here  to  say,  thai  Ihis  great  change 
began  in  Spain,  according  lo  Bodin,  about  tha 
end  of  the  eighth  century,  and  vras  becoma 
general  before  Ibe  middle  of  the  fourteenth 
century.  Bartolus,  Ihe  most  famed  commen- 
tator CD  Ihe  civil  taw  in  that  period,  represents 
slavery  as  io  disuse ;  and  the  succeeding  com- 
mentators hold  much  the  sane  language. 
However,  they  must  be  understood  with  many 
resLriciboi  and  exceptions ;  and  uot  to  mean, 
that  slavery  was  completely  and  universally 
nboli.ched  in  Europe.  Some  modern  civilians, 
nol  sufficiently  atiendiog  to  Ihis  circum!lance, 
rather  too  hastily  reprehend  their  predecessors 
for  representing  slavery  as  disused  ju  Europe. 
The  truth  is,  that  the  ancient  species  of  slavery 
bj|  frequent  emancipalions  became  greatly  di- 
minished in  extent ;  the  remnant  of  il  was  con- 
siderably abated  io  severity  ;  the  disuse  of  the 
practice  of  enilatiog  captives  taken  in  the 
wars  between  Christian  powers  assisted  in  pre- 
venting the  future  increase  of  ilom est ic  slavery  ; 
and  in  some  countries  of  Europe,  particularly 
England,  a  still  more  effectual  method,  which 
I  shall  explain  herealler,  was  thought  of  toper- 
feet  llie  BUppressina  of  il.  Such  waa  the  ex- 
piring Blale  of  domestic  slavery  in  „„;,j,  ^,j^ 
Europe  at  Ibe  commencement  of  chiiIciIi.rt 
the  sixteeolh  century,  when  the  '°  '■'"'""■ 
discovery  of  Ameiica  and  of  the  western  and 
eastern  coasls  of  Africa  gave  occasion  lo  tb« 
inlroduclion  of  a  new  species  of  slavery.  It 
took  its  rise  from  the  Portuguese,  who,  in  order 
In  supply  the  Spaniards  wilb  persons  able  lo 
■uslaio  the  fatignc  of  cultivating  their  new 
poEseabiuns  in  America,  particularly  Ihe  islands, 
opened  a  trade  between  Africa  and  America 
for  the  sale  nf  negro  slaves.  This  ditgraceful 
commerce  in  Ihe  human  apecies  is  said  lo  have 
beguu  in  the  yeiir  1506,  when  Ihe  fifoi  impor- 
tation of  negro  slaves  waa  mnde  into  Hitpaiiiola 
from  the  Purtagiiese  settlements  on  Ihe  western 
ooaslB  of  Africa  (y>.  In  1540  llie  emperor 
Chariea  the  tilth  endeavoured  lo  slop  the  pro- 
gress of  the  negro  slavn-y,  by  orders  that  all 


(i)   See  his  book  De  KepublicA,  cap.  5,  da 

(t)  Jur.  Gent,  csp.de  sertilule. 

(u)  Jur.  Germ,  de  statu  acrvorum. 

(t/)  Life  of  ibe  emperor  Charles  Ihe  Hb, 

TOl.  1. 

(x)  Observations  on  ihe  ilistinrliDn  ofrankt 
in  civil  sociely.  See  alio  Tayl.  Ekm.  Civ.  U 
•34  to  4S9. 

(y)  Ander.  Hist.  Comm.  T.  1,  p>  330. 


S5]  12  GEORGE  III. 

ulavef  in  the  American  itlee  should  be  made 
free;  and  ihey  were acconiinfriy  nannmitted 
by  La^fasca  the  (j^OTeroor  of  the  country,  on 
condition  of  contiouinfif  to  labour  for  their  nas- 
tert.  But  this  attempt  prored  umueceesful, 
and  on.  Lagasca'a  return  to  Spain  domestic 
8la?ery  re? i?ed  anti  flourished  aa  before  (2). 
The  eipedient  of  havin§f  slaves  for  labour  in 
America  was  not  longf  peculiar  to  the  Spaniards ; 
being  afterwards  adopted  by  the  other  Euro* 
peansy  as  they  acc^uired  possessions  there.  In 
consequence  of  this  general  practice,  negroes 
are  become  a  very  considerable  article  in  the 
commerce  between  Africa  and  America ;  and 
domestic  slavery  haa  taken  so  deep  a  root  in 
most  of  our  own  American  colonies,  as.  well  as 
in  those  of  other  nations,  that  there  is  little 
probability  of  ever  teeing  it  generally  sup- 
pressed. 

hm  attempt  Here  I  conclude  my  observa- 

to^imuxtuGc^^  tions  on  domestic  slavery  in  ge- 
wttnnSto  neral.  1  hare  exhibited  a  view 
ImiD^". "'  o^  >(•  nature,  of  iu  bad  tendency, 
of  its  origin,  of  the  arguments  tor 
and  against  its  jusiice,of  its  decline  in  Europe, 
and  the  introduction  of  a  new  slavery  by  the 
European  nations  into  their  American  colonies. 
1  shall  now  examine  the  attempt  to  obtrude 
this  new  slavery  into  England.  And  here  it 
will  be  materialto  observe,  that  if  on  the  de- 
clension of  slavery  in  this  and  other  countries 
of  £uro|ie,  where  it  is  discountenanced,  no 
means  had  been  devised  to  obstruct  the  ad- 
mission of  a  new  slavery,  it  would  have  been 
vain  and  fruitless  to  have  attempted  superseding 
the  ancient  species.  But  I  hope  to  prove, 
Arfomeoti  to  ^^^^  ^^r  anccstors  at  least  were 
prate,^tbit  Dot  aoshort-sighted  ;  and  that  long 
EniiaV*in  <^  uninterrupted  usage  has  esta- 
blished rules,  as  effectual  to  prevent 
the  revival  of  slavery,  as  their  hu- 
manitv  was  successful  in  once  suppressing  it. 
I  shall  endeavour  to  abew,  that  the  law  of 
England  never  recognized  aoi^  species  of  do* 
mestic  slavery,  except  the  ancient  one  of  vil- 
leoage  now  expired,  and  has  sufficiently  pro- 
vided against  tne  introduction  of  a  new  slavery 
under  the  name  of  villenage  (a)  or  any  other 
denomination  whatever.  This  proposition  I 
hope  lo  demonstrate  from  the  followmg  consi- 
derations. 

1.  ArnBCBt  ^*  ^  apprehend,  that  this  will  ap- 
rioi  the         pear  to  be  the  law  of  England  from 

Mktau  title  the  manner  of  making  title  to  a 
•f  •  flllelD.       ^iii^n. 

The  only  shvery  our  law-books  take  the 
least  notice  of  is  that  of  a -villein  ;  bv  whom 
was  meant,  not  the  mere  tenant  by  villein  ser« 
vices,  who  might  be  free  in  his  person,  but  the 
villein  in  blood  and  tenure;  and  as  the  English 

(4)  See  Bodin  de  Republic,  lib.  1,  c  5. 

(a)  Villenage  is  used  to  express  sometimes 
Iha  tenure  of  lauds  hehl  by  villeiii-servicM.  and 
■onetimes  th*  ptnonal  bandage  of  tha  viUein  ( 
km  Uwocfhont  thia  aigiuBHt  it  ii  appliid  ta 


The  Negro  Cote* 


[36 


not  idrait  a 

■cv  lUrcnr. 


\  I  ■ 


1 .1 . 


li 


law  has  no  provisioaa  to  regulate  any  othex 
slavery,  therefore  no  slavery  can  be  lawful  in 
England,  except  such  as  will  consistently  fail 
under  the  denomination  of  villenage. 

The  condition  of  a  villein  hiul 
most  of  the  incidenU  which  1  have  ^  ^^ 
before  described  in  giving  the  idea 
of  slavery  in  general.  His  service  was  uncer- 
tain and  indeterminate,  such  as  his  lord  thought 
tit  to  require;  or,  as  some  of  our  aocieni 
writers  {b)  express  it,  he  knew  not  in  tlie  evening 
what  he  was  to  do  in  the  morning,  be  was 
bound  to  do  whatever  he  was  commanded.  He 
was  liable  to  beating,  imprisonment,  and  every' 
other  chastisement  his  lord  miffht  prescribe,  efr 
cept  killing  and  maiming  (c).  He  was  incapable 
of  acquiring  property  for  his  own  benefit,  the 
rule  being  *  quicquid  acquiritur  servo,  acquiritur 
domino*  (d).  He  was  himself  the  subject  o£ 
property ;  as  such  saleable  and  transmissible. 
If  he  was  a  villein  regardant,  be  passed  with 
the  manor  or  land  to  which  he  was  annexed, 
but  might  be  severed  at  the  pleasure  of  hia 
lord  U)  If  he  was  a  villein  in  gross,  he  was  an 
hereditament  or  a  chattel  real  according  to  his 

(h)  See  the  extracts  from  them  in  Co.  Litt 
116,  b. 

(e)  See Terroes  de  la  Ley,  edit,  of  1567» 
voc  Villenage — Old  Tenures,  can.  Villenage— 
Fitzh.  Abr.  Coron.  17.— 2  Ro.  Abr.  1.— S  Jnat 
45.— and  Co.  Lilt.  136, 197. 

(d)  Co.  Litt  117,  a.— The  words,  in  pleads 
ing  seizin  of  villein-service,  are  very  exprcs* 
sive  of  the  lord's  power  over  the  villein's  pro* 
perty.  In  1  £.  2,  4,  it  is  pleaded,  that  the 
lord  was  seized  of  the  villein  and  his  ancestors 

*  come  affaire  rechat  de  char  et  de  ssnk  et  de 

*  fille  msrier  et  de  eux  tailler  haut  et  has,  5cc.* 
The  form  in  5  E.  8,  ]57i  is,  *  come  de  nos  vi« 

*  leynes  en  fesant  de  luy  notre  provost  ea 
'  p*nant  de  luy  rechat  de  char  et  de  saunk  et 

*  redemption  pur  fille  et  fits  marier  de  luy  el 

*  de  ces  aunc  et  a  tailler  haut  et  haa  a  notre 

*  volente.'  In  the  first  of  the  above  fomoe 
there  is  evidently  a  misprint ;  and  the  reading 
ahould  be  *  a  faire  rechat*  instead  of  *  affaire 

*  rechat.'  As  to  the  word  *  provost'  in  the 
second  form,  it  seems  to  signify  *  plunder,'  and 
perhapa  the  print  should  be  *  proie'  or  '  proye* 
instead  of  *  provost.'  I  was  led  to  this  con- 
jecture by  the  following  proverb  iu  Cotgrave's 
French  Dictionary,  *  qui  a  le  vilain  u  a  as 

*  proye.'  See  Cotgr.  edit,  of  1673,  voc.  proye. 
However,  in  the  Latin  Entriea  the  woni  •  pro* 

*  vest'  is  translated  '  propositum,'  which  in  a 
barbarous  sense  of  the  word  may  be  construed 
to  signify  *  will'  or  *  pleasure,'  and  will  make 
the  passage  intelligible.    In  aome  Entries  *  prcH 

*  vest'  is  transUted  *  propositus ;'  but  this  word 
cannot  be  understood  in  any  sense  that  will 
make  this  use  of  it  intelligible. 

The  forms  of  pleading  aeisin  of  villein -aer« 
vieaa  in  the  Latin  Entries  are  very  aimilar  to 
those  1  ksve  sstrsetsd  from  the  ycsr^books. 
8ss  RssL  Entr.  401.  a. 

(%)  UttssoLlSa. 


sn 


The  N^ro  Case* 


M^s  inteml ;  bein^  detcendible  to  the  heir 

vhcretbe  lord  wms  ibeolote  owner,  and  trans- 

BiMMt  to  the  eieeutor  where  the  lord  had 

eoly  ■  term  of  yean  in  hiro  (/).    Lastly,  the 

way  esteDded  to  the  iasne,  if  both  parents 

wet  filletBs,  or  if  the  father  only  was  a  rillein  ; 

m  kw  dcriviosr  the  condition  of  the  child  from 

ia  if  the  father,  contrary  to  the  Roman  law,  in 

fMeh  tho  rolo  wnptuius  $equitur  ventrem  (g^. 

The  origin  of  villenage  is  princi- 

3^  ^    pally  (k)  to  bederired  from  the  wars 

between  our  British,  Saxon,  Danish 

M  Nemaii  ancestors,  whilst  they  were  oon- 

tadiar  fi»r  the  possession  of  this  country. 

isdfeFitsherbert,  in  his  reading  on  the  4th  of 

Uw.  1,  stmt.  1.  entitled  Extenta  mttnerUf  sup- 

psas  fiBeiiage  to  ha?e  commenced  at  the  Con- 

sseit,  by  the  distribution  then  made  of  the 

■rfdtod  lands  and  of  the  vanquished  inha- 

lilsnls  icsident  upon  them  (j) .    But  there  were 

boDdmeo  in  England  before  the  Conquest, 

are  by  the  Anglo  Saxon  laws  regulating 

y  and  therefore  it  would  be  nearer  the 

Inth  to  attribate  the  origin  of  villeins,  as  well 

litbe  preeediog  wars  and  revolutions  in  this 

i  to  the  efiects  of  the  Conquest  (k). 

After  the  Conquest  many  things 

•^         happily  concurred,  first  to  check 

the  progress  of  domestic  slavery  in 

Earlaad,  and  finally  to  suppress  it.    The  cruel 

CBStoa  c€  enslaving  captives  in  war  being  abo- 

iiibedv  from  that  time  the  accession  of  a  new 

nee  ef  villeios  was  prevented,  and  the  huma- 

liiy,  policy,  and  necessity  of  the  times  were 

— hnallj    wearing  out   the   ancient    race. 

''nses,  DO  doubt,  manumissions  were  freely 

;  bat  they  probably  were  much  oftener 


(f)  Bro.  Abr.  Villenage,  60.^^o.  Litt.  117. 

ff)  Co.  Litt.  123.  Artieatly  our  law  seems 
It  ^ave  been  very  uncertain  in  this  respect. 
8k  Gknv.  lib.  5,  c.  C.  Nirr.  c.  2,  s.  38.  Britt. 
c  3L  Bot  the  writers  in  the  reign  of  Henry 
ibe  «tb  agree,  that  our  law  wss  as  here  repre- 
■sted  (  and  from  the  plea  of  bastardy,  which 
*M  held  to  bo  a  peremptory  answer  to  the  al- 

Sm  of  villenage  so  early  as  the  reign  of 
ard  the  3d,  1  conjecture,  that  the  law 
vsi  settled  in  the  time  of  his  father.  See 
Fwteac.  Land.  Leg.  Angl.  c.  4^.  Lilt.  sect.  187. 
—43  E.  3, 4,  and  Bro.  Abr.  Villenage,  7. 

(kj  I  do  not  say  wholly,  because  probably 
tbcre  were  some  »>laves  in  England  before  the 
fins  arrival  of  the  Saxons ;  and  also  they  and 
the  Danes  might  bring  some  few  from  their 
ova  country. 

(i)  See  the  extract  from  Fitzherbert's  read- 
■g  io  Barringt.  Observations  on  Ant.  Sut.  2d 
«<a.  p.  «37.* 

(k)  See  Spelra.  GUms.  voc.  Lszzi  et  Servus. 
IwHi.  OQ  Gavelk.  65,  and  the  index  to  Wiik. 
Uf.  Saxoo.  tit.  Servos. 

*  Cooeeniiog  the  antiquity  of  villenage,  see 
— '^'  -m  "A  Discourse  of  Tenures,"  said 


to  be  wntieo  by  sir  Walur  Raleiffb,  published 
•  GMli*i  CoUoetaiiea  Cmu^  ^ ol.  l,  p.  60. 


A.  D.  1771.  p8 

extorted  during  the  rage  of  the  civil  wars,  so 
frequent  before  the  reign  of  Henry  the  7th, 
about  the  forms  of  the  constitution  of  the  sue* 
cession  to  the  crown.  Another  cause,  which 
greatly  contributed  to  the  extinction  of  villen- 
age, was  the  disconrsfjement  of  it  by  the  courts 
of  justice.  Tbejr  always  presumed  in  favour 
of  liberty,  throwing  the  '  onus  probandi'  upon 
the  lord,  as  well  in  the  writ  of  Homine  Reple« 
giando,  where  the  villein  was  plaintiff,  as  in 
the  Native  Habendo,  where  he  was  defen- 
dant (/).     Nonsuit  of  the  lord  after  appearanco 

(I)  See  Lib.  Intrat.  176,  a.  177,  b.  6c  Bro. 
Abr.  Villenage,  66,  It  seems  however,  that  if 
after  a  Native  Habendo  brought  by  the  lord, 
the  villein,  instead  of  waiting  for  the  lord's 
proceeding  upon  it,  sued  out  a  Libertate  Pro- 
banda  to  remove  the  question  of  villenage  for 
trial  before  the  justices  in  eyre,  on  the  return 
of  it  he  was  to  produce  some  proof  of  his  free 
condition ;  and  tbi^t  if  be  failed,  he  and  his 
pledges  were  amerced.  But  this  failure  did 
uot  entitle  the  lord  to  any  lienefit  from  bis  Na- 
tive Habendo,  and  therefore,  if  be  proceeded 
in  it,  and  could  not  prove  the  villenage,  the 
judgment  was  for  the  villein ;  or  if  the  lord  did 
not  proceed,  a  nonsuit,  which  was  equally  fatal 
to  tna  lord's  claim,  wa^  the  necessary  canso> 
qnence.  Sea  47  H.  3.  It.  Dev.  Frtz.  Abr. 
Villensge,  3^  In  truth,  the  rfqirisition  of 
proof  from  the  viliein  on  the  Libertate  Pro- 
banda, and  the  amercement  for  want  of  it, 
seem  to  have  been  mere  form ;  for,  as  Fits* 
herbert  vays,  in  explaining  the  effect  of  the 
Libertate  Probanda,  **  the  record  shall  be  sent 
before  the  justices  in  eyre,  and  the  lord  shall 
declare  thereupon,  and  the  villein  shall  mabo 
his  defence  and  plead  thereunto,  and  the  viUvin 
shall  not  declare  upon  the  writ  de  Libercato 
Probanda,  nor  shall  any  thing  be  done  there- 
upon ;  for  that  writ  is  but  a  Supersedeas  to 
surcease  for  the  time,  and  to  ailjourn  the  record 
and  the  writ  of  Nativo  Habendo,  beibre  the 
justices  in  eyre."  Fitz.  Nat.  Br.  77,  D.  Upon 
the  whole  therefore  it  may  I  think  be  safely 
asserted,  that  in  all  cases  of  filleoage  the 
*  onus  probandi'  wan  laid  upon  the  lirrd. 

The  several  remedies  sgainst  abd  for  one 
claimed  as  a  villein  are  now  so  little  under- 
stood, that  perhaps  a  short  account  of  them 
may  be  acceptable ;  more  particularly  as,  by 
a  right  conception  of  them,  it  will  be  more  easy 
to  determine  on  the  force  of  the  argument 
drawn  against  the  revival  of  slavery  from  the 
rules  conierninflf  irillenak^e. 

The  lord's  remedy  for  a  fugitire  villein  was, 
either  by  seizure,  or  by  suing  out  a  writ  of 
Nativo  Habendo,  or  Neitty,  as  it  is  some- 
times called. 

1.  If  the  lord  seized,  the  villein's  most  ef- 
.fectual  mode  of  recoveriui;  lilierly  was  liy  the 
writ  of  Homine  Keplegiaodu ;  m  Inch  had  i;reat 
advantage  over  the  writ  of  Habeas  Corpus. 
In  the  Habeas  Corpus  the  returu  ciuinot  be 
contested  by  pleading  agaiost  the  irutli  of  it, 
and  consequently  on  a  Hftbeaa   Corpus  the 


Si)]  12  GEORGE  IIL 

in  a  Nalivo  Hibendo,  which  was  the  writ  for 
asserting  the  title  of  sUfery,  was  a  bar  to  an- 
other Nativo  Habeodo,  and  a  perpetaal  eofran- 
chiaemeot ;  but  noosuit  of  the  fillein  after  ap- 
pearaoce  id  a  Libertate  Probanda,  which  was 
one  of  the  writs  for  asserting  the  chim  of  liberty 
against  the  lord,  was  no  bar  to  another  writ  of 
the  lilce  kind  (m).  If  two  plaintifis  joined  in  a 
Nati?o  Habendo,  nonsuit  of  one  was  a  nonsuit 
of  both ;  but  it  was  otherwise  in  a  Libertate 

question  of  libertv  cannot  go  to  a  JQiT  for  trial ; 
though  indeed  the  party  making  a  raise  return 
b  liable  to  an  action  for  damages,  and  punish- 
able by  the  Court  for  a  contempt;  and  the 
Court  will  hear  affida?  its  against  the  truth  of 
the  return,  and  if  not  satisfied  with  it  restore 
the  party  to  his  liberty.  Therefore,  if  to  a 
Habeas  Corpus  villenage  was  returned  as  the 
cause  of  detainer,  the  person  for  whom  the  writ 
was  sued  at  the  utmost  could  only  hare  ob- 
tained his  libertv  for  the  time,  and  could  not 
bare  had  a  regulsr  and  final  trial  of  the  ques- 
tion. But  in  the  Homioe  Replegiando  it  was 
otherwise ;  for  if  villenage  was  returned,  an 
Alias  issued  directing  the  sheriff  to  replevy  the 
party  on  his  giving  security  to  answer  the 
claim  of  villenage  afWrwards,  and  the  plaintiff 
might  declare  for  false  imprisonment  and  lay 
damages,  and  on  the  defendant's  pleading  the 
villenage  had  the  same  opportunitv  of  contest- 
ing it,  as  when  impleaded  by  the  lord  in  a 
Natif o  Habendo.  See  Fitzh.  N.  Br.  66.  F. 
et  Lib.  Intrat.  176,  a.  177,  b. 

8.  If  the  lord  sued  out  a  Nativo  Habendo, 
and  the  villenage  was  denied,  in  which  case 
Ihe  sheriff  could  not  seize  the  villein,  the  lord 
vms  then  to  enter  his  plaint  in  the  county 
court ;  and  as  the  sheriff  was  not  allowed  to 
try  the  question  of  villenage  in  his  court,  the 
lord  could  not  have  any  b^efit  from  the  writ, 
without  removing  the  cause  bv  the  writ  of 
Pone  itito  the  King's- bench  or  Commou  Picas. 
[For  the  count,  pleading  and  judgment  in  the 
Nativo  Habendo  afler  the  remo? al,  see  Rast. 
£ntr.  436, 437.]  It  is  to  be  observed,  that  the 
lord's  right  of  seizure  continued  notwithstand- 
ing his  having  sued  out  a  Natifo  Habendo, 
unless  the  Villein  brought  a  Libertate  Probanda. 
This  writ,  which  did  not  lie  except  upon  a 
Natif  o  Habendo  previously  sued  out,  was  for 
remofal  of  the  loitl's  plaint  in  the  Nativo  Ha- 
bendo for  trial  before  the  justices  in  eyre  or 
those  of  the  King's -bench,  and  also  for  pro- 
tecting the  villein  from  seizure  in  the  mean 
time.  This  latter  effect  seems  to  have  been 
the  chief  reaaon  for  suing  out  the  Libertate 
Prolmnda;  and  therefore  afler  the  85th  of 
Edw.  3,  Stat.  5,  c.  18,  which  altered  the  com- 
mon law,  and  gires  a  power  of  seizure  to  the 
lord,  nntwithstaading  the  pendency  of  a  Liber- 
tate 'Probanda,  that  writ  probably  fell  much 
into  disuse,  though  subsequent  cases,  in  which 
it  was  bntught,  aie  to  be  found  in  the  year- 
books. ISee  Fitzh.  Nat.  77|  to  79»  and  1 1  Ben. 
4, 49. 

(m)  Co.  U»L  131. 


Z%e  Negro  Case. 

Probanda  (n).  The  lord  could  not  proeecoli 
more  than  two  villeins  in  one  Nati? o  Haben 
but  any  number  of  ? illeins  of  the  same  b 
might  join  in  one  libertate  Probanda  (o).  ] 
numissipns  were  inferred  from  the  sli^fc 
circumstances  of  mistake  or  negligence  m 
lord,  from  every  act  or  omission  which  h 
refinement  could  strain  into  an  acknowk 
ment  of  the  villein's  liberty.  If  the  lord  ve 
the  ownership  of  lands  in  the  villein,  rece 
homage  from  him,  or  gave  a  bond  to  him, 
was  enfranchised,  goffering  the  villein  tc 
on  a  jury,  to  enter  into  religion  and  be  | 
fessed,  or  to  stay  a  year  and  a  day  in  anc 
demesne  without  claim,  were  enfranchisemc 
Bringing  ordinary  actions  against  him,  joii 
with  him  in  actions,  answering  to  his  act 
withoot  protestation  of  villenage,  iuiparlinf 
them  or  assenting  to  his  imparlance,  or  snl 
ing  him  to  be  vouched  without  counter-pleai 
the  voucher,  were  also  enfranchisem 
by  implication  of  law  {p).  Most  of  the  i 
structive  manumissions  I  have  mentioned  i 
the  received  law,  even  in  the  reign  of  the 
Edward  (y).  I  have  been  the  more  partij 
in  enumerating  these  instances  of  eztraordii 
fa?  our  to  liberty ;  because  the  anxiety  of 
ancestors  to  emancipate  the  ancient  villeini 
well  accounts  for  the  establishment  of  any  r 
of  law  calculated  to  obstruct  the  introdoctio 
a  new  stock.  It  was  natural,  that  the  s 
opinions,  which  influenced  to  discountem 
the  former,  should  lead  to  the  preventioi 
the  latter. 

f  shall  not  attempt  to  follow  vil- 
lenage in  the  several  stages  of  its  J^^p 
declme ;  it  being  suflBcient  here  to 
mention  the  time  of  its  extinction,  wbicfc 
all  agree,  happened  about  the  latter  en< 
Elizaoeth's  reign  or  soon  afler  the  accessio 
James  (r).  One  of  the  last  instances,  in  wl 
villenage  was  insisted  upon,  was  Crouch's  < 
reportMl  in  Dyer  and  other  books  (s).  An 
try  having  been  made  by  one  Butler  on  si 
lands  purchased  by  Crouch,  the  question  i 
whether  he  was  Butler's  villein  regardi 
and  on  two  special  verdicts,  the  one  in  ej 
ment  Mich.  9th  and  lOtb  Eliz.  and  the  o 
in  assize  Easter  11th  Eliz.  the  claim  of 
lenage  was  disallowed,  one  of  the  reasons  g 
for  the  judgment  in  both  being  the  wsn 
seizing  of  the  villein's  person  within  60 
years,  which  is  the  time  limited  by  the  32 
Hen.  8,  chap.  8,  in  all  cases  of  hereditam 

(n)  Co.  Litt.  139. 

(o)  Fiizh.  Nat.  Br.  78,  C.  D. 

(p)  See  Litt.  sect  803  to  209,  and  3 
Abr.  735, 736,  and  737. 

(q)  See  Britt  cap.  31,  and  Mirr.  ca|i 
sect.  38. 

(r)  See  sir  Thomas  Smith's  Commonwe: 
b.  2,  c.  10,  and  Barringt.  Obsery.  on  Ant.  2 
Sd  ed.  p.  333. 

(t)  See  By.  366,  pi.  11,  and  383,  pi.  3^ 

(i)  Accord.  Bro.  Read,  on  Ibe  Stat 
limitit  3S  Hm.  8,  p8ge  ir. 


The  Nfgro  Case. 

__  ri  hfP'B'^P^o''  H-  Tbis  is  generally 
mik  H  k*T«  been  the  Imi  case  of  villenBge ; 
Ia  ttera  arc  fnar  nibnetiiient  casea  in  jirint 
Ohsm  in  UiUry  18th  of  Elizabeth  (bi); 
^Mfcr  WM«  a  jutlgment  in  Easter  Ist  ol 
iMMfi) :  Ihc  thini,  which  was  nerer  deter- 
■M^  h»pp«n«d  ia  Trinity  8tli  ol'  James  (y)  \ 
■<**  iiiunhHMsn  late  as  Hilary  IMti  of 
Jmm  (a).  From  the  lath  nf  James  (he  Ist, 
lMf«i»n>  Ibaa  150  years  a^,  the  claim  of 
dwafv  hft*  not  bren  beard  of  in  our  courts 
•fJMlier  ;  wiil  nntliiog  can  be  mure  notorlnua, 
tm  Hmt  Ibe  Tsce  of  |nnjuHB,  trim  were  onue 
ia  rii)eets  ol'  it,  was  about  lliat  time  coni- 
Ij  v*m  out  by  the  continual  and  united 
thm  af  dealbi  and  manumissions. 
■  Iboo^  villenafe  itieir  is  abielete,  yet 
bWuiifcity  Umm  rules,  by  which  the  claim  of 
Iwani^lated,  are  iiot  yet  buried  in  obliviuo. 
IhtNtllc  iBtfastry  of  our  anceatora  baa  tranS' 
MUri;  nor  Im  us  their  posterily  despise  tbe 
Mcnnd  leii[Bcy.  By  a  strange  progress  of 
!■■•■  kAin,  the  roemory  uf  slavery  expired 
tarn  fiiraUtcs  ooe  of  the  chief  obstacles  to  the 
(■udMJtien  afittvery  attempted  lo  he  revived  ; 
mi  At  renffwMK  reliijuea  of  llic  learning  re- 
Ittt  lo  vUtma^,  so  Inn);  consigoed  lo  gratify 
ia  ia*Mtig«ting'  curiosity  of  tbe  anliquary,  ur 
■ari  ■■  a  vpleodid  appendage  to  lbs  orna- 
■oM  «f  tfa*  ochnlar,  tnusi  oovr  be  drawn  forth 
-•■a  Ibartr  fsitliful  repositories  tor  a  more  noble 
r|«a«;  to  inform  and  gnide  (he  sober  judg- 
HI  af  tbio  Court,  aod  as  1  trust  10  preserve 
■  armultty  from  the  miseries  ol'  domeslic  sla- 
wy. 

^^  Littleton  (a)  aaya,  etery  lillein 

«M>  m  either  ■  villein  by  title  of  pre- 
aJS^  acriptioa,  to  wit  that  he  and  his  an> 
oMIora  hj*e  been  f  illeius  time  oul 
^  Faa'ij ,  or  he  ia  a  lillein  by  his  own  con- 
■^^  m  •  court  of  record.  And  in  another 
fhta  ti),  bis  description  of  a  villein  res^rjanl 
Md  «l  a  sUkin  in  grosa  shews,  that  title  can- 
■■!■  nod*  in  eilhef  without  prescription  or 
csafa^MS.  Time  whereof  no  memory  runs 
liteaootrary,  is  on  iotepurable  incident  to 
(•try  f«*aon|rttoa  (c) ;  and  therefore,  according 
ts  LwMod'*  account  of  villenai^,  tbe  loi^ 
B*M  pravc  tlie  slavery  ancient  and  immemo- 
nl ;  0(  ibc  'tlleio  must  solemnly  confess  it  lo 
I*  an  io  s  court  of  justice.  A  alill  earlier 
"ler  Uy»  down   Ibe    rule  in  terms  equally 

:>  )  Before  this  statute  of  Hen.  the  8lh,  the 
-iir  nf  KniiBlioa  seems  to  have  lieen  the  coro- 
i^awuf  Hen,  3,  asappeara  hy  the  form  of  the 
Xmv«  H*b«iMlo ;  though  ia  oilier  nrits  of  rii;ht 
baHniutimi  by  31  E.  1,  e.  39.  was  from  the 
«Ma»ae«mrut  nf  the  rrtgu  of  Uich.  tbe  1st. 
(m)  8m  Co.  Uotr.400,  b. 
O)  Yrf».  «. 

tl}    This  case  is    only    tu    be    fnand    ia 
"~  '    '•  AbHilgment,  til.  Villenage,  pi.  S3. 


A.  D.  I77I.  [;« 

strong.  No  one,)ay«  Brition  (d),  can  be  a  villein 
except  of  ancient  naliviiy,  or  by  acknovrledg- 
menl.  All  the  proceedings  to  cases  of  tiltena|re, 
when  contested,  conform  lo  this  idea  of  remote 
antiquity  in  the  slavery,  and  are  quite  irrecoQ- 
cileable  with  one  of  modero  coinmenL'emeut. 

1.  The  villein  in  alt  such  suits  (r)  between 
him  and  his  lord  was  stileil  tialwus  ax  well  os 
villanits;  our  Bncienl(,/")  writers  describe  a 
female  slave  by  no  otber  name  than  that  of 
neif;  and  the  technical  name  of  the  only  writ 
in  the  law  for  ihe  recovery  of  a  villein  is  equal- 
ly remarkable,  being  always  called  tbe  Nativo 
Habcndo,  or  writ  of  neitiy.  This  peculiarity 
of  denominalion,  wbiuh  implies  that  villenage 
ia  a  slavery  by  birth,  mi)[bt  perbapa  of  itself  Be 
deemed  too  slight  a,  founilBlioii  tor  any  solii 
argument ;  but  when  combined  with  uiher  cir- 
cumstances more  decisive,  surely  it  is  nni 
without  very  considerable  force. 

3.  In  pleading  villenage  where  il  had  not 
been  confessed  on  some  former  occasion,  Ihe 
lord  always  founded  bis  title  on  prescrtplion. 
Uur  year  books,  and  books  of  entries,  are  full 
of  the  forms  used  in  pleading  a  tide  lo  villeins 
regardant.  In  the  Homine  Replegiando,  and 
other  actions  where  (he  plea  of  villenage  waa 
tor  the  pur|iose  of  shewing  the  pluinlilTs  dia- 
abiliiy  lo  sue,. if  ihe  villein  was  r^iinlant,  the 
delendani  alledq[ed,  that  he  was  seized  of  such 
a  manor,  and  that  Ihe  plainiifFaiid  his  ancestors 
liad  been  villeins  belonging  to  the  manor  lime 
oul  of  mind,  and  that  Ibe  defendanl  and  hio 
ancestors  and  all  those  whose  estate  he  had  in 
the  manor,  had  been  seized  uf  the  plaiotilTaod 
all  his  ancestors  as  of  villeins  belongiug  to  ii  (g). 
In  the  Nativo  Habendo  the  form  of  makiog 
tide  to  a  villein  regardanl  was  in  substance  the 
aame(A}.  In  fact,  regardancy  necessarily  im- 
plies prescription,  being  where  one  and  his  an- 
cestors have  lieen  anneited  lo  a  manor  time  oul 
ofihememory  of  man  (i).  As  to  rilleinsin  gross, 
tbe  cases  relative  lo  thera  are  very  few  ;  and  I 
am  inclined  to  think,  that  there  uever  was  any 
great  number  of  them  in  England.  Tbe  au- 
thor of  tbe  Mirroir  {k),  who  wrote  in  Ihe  reign 
of  Edward  the  3d,  only  mentiotis  villeins  regard- 
ant :  and  air  Thomas  Smith,  who  was  secre- 
tary of  stale  Id  tbe  reign  of  Edward  the  eih, 
says,  that  in  his  time  be  never  knew  a  villein 
in  grass  thrnugboul  the  realm  (/),     However, 


(d)  '  Nul  ne  poit  estre  villeyn  fortque  d« 
■  auncienne  nalivile  ou  par  recognisance.* 
Britl.  Wing.  ed.  cap.  31,  p.  78. 

(e)  tSee  the  form  ol  ihe  wrils  of  Nalivo  Ha- 
bendo and  Liberiote  Probanda,  and  also  of  the 
Alias  Homine  Keplegiando,  where  on  the  Aral 
writ  the  shentf  reiurus  the  claim  of  villenage. 

(f)  Brit.  cap.  31  ic  Lilt.  sect.  1B6. 

(g)  Het  Itaat.  Entr.  til.  Homine  Reple- 
giando,  373,  Ac  Lib.  Inint.  56. 

(A)  See  tbe  farm  in  Ub,  Intnii.  97,  3c  Rast 
Entr.  401. 

CO  This  ia  agreeable  lo  what  Liltleton  sayfl 
in  sect.  IQ'J,  (k)  Mirr.  c.  3,  g  38. 

(I)  Smiib's  Common  weal  lb,  b.  3,  c.  10< 


IS  GEORGE  UL 

after  %  loof  March,  I  do  fiod  placet  ia  tlie  year- 
books, where  the  form  ofalledgini^  villenage  io 
groM  is  expressed,  not  io  full  terms,  but  in  a 
general  ws^ ;  and  io  all  the  cases  I  bare  yet 
aeen,  the  villcosge  is  alledged  in  the  ancestors 
of  the  person  against  whom  it  was  pleaded  (m), 
and  in  one  of  them  the  words  *  time  beyond 
memory'  (n)  sre  added,  lint  if  precedents  bad 
been  wsnting,  the  authority  of^  Littleton,  ac- 
cording to  whom  the  title  to  fiJIenage  of  each 
kind,  unleM  it  has  been  confessed  must  be  by 
prescription,  would  not  hs?e  left  the  least  room 
tor  supposing  the  pleading  of  a  prescription 
less  necessary  on  the  claim  of  ? illeins  in  gross 
than  of  thoie  regardant 

3.  The  kind  of  eridence,  which  the  law  re- 
quired to  prove  villeoage,  and  allowed  in  dis- 
£roof  of  it,  is  only  spplicable  to  a  slavery  in 
kiod  and  family,  one  uninterruptedly  trans- 
mitted through  a  long  line  of  ancofttors  to  the 
persfm  against  whom  it  was  alleged.  On  the 
lord's  part,  it  was  necessar;^  that  he  shoulil 
prove  the  slavery  against  his  villein  by  other 
villnnv  of  the  same  blood  (o),  such  as  were 
descmded  from  the  same  common  male  stock, 
and  would  acknowledge  themselves  t illeins  to 
the  lord  ( p ),  or  those  from  whom  he  derived 

(m)  See  1  E.  2,  4.-5  E.  S,  15.— 7  £.  8, 
S49,  &  11  E.  8,  344.  In  13  E.  4, 8,  b.  pi.  4,  & 
3  b.  pi.  1 1,  there  is  a  case  in  which  villenage  in 
groiis  is  pleaded,  where  one  became  a  villein  in 
gross  by  severai^ce  from  the  manor  to  which  he 
had  been  regardant.  This  being  the  only  case 
of  the  kind  I  ha  ye  met  with,  I  will  state  mo 
much  of  it  from  the  year  book  as  is  necessary 
to  shew  the  manner  of  pleading.  In  trespau 
the  defendant  pleads,  that  a  manor,  to  which 
the  ptaintifT's  father  was  a  villein  regardant, 
was  given  to  an  ancestor  of  the  defendant  in 
tail;  and  that  the  manor  descended  to  Cecil 
snd  Catharine ;  and  that  on  partition  between 
them,  the  villein  with  some  lands  was  allotted 
to  Cecil,  and  the  manor  to  Catharine  ;  and  then 
the  defendant  conveyed  the  villein  from  Cecil 
to  himself  as  heir. 

(n)  UK.  8,344. 

(o)  See  Hro.  Abr.  Villenage,  66  Reg.  Br. 
117,  a.  Old  Nat.  Br.  43,  b.  Fitz.  Abr.  Ville- 
nage, 38,  39.  A  bastard  was  not  receivsble  to 
prove  villenage,  13  £.  1.  It.  North.  Fitzh. 
Abr.  36, 6c  Britt.  Wing.  edit.  88,  a. 

(p)  in  Fitzlierbert's  Natura  Brevium,  79. 
B.  It  is  said,  that  the  witnesses  must  acknow- 
1ed|k:e  themselves  villeins  to  the  plaintiff  in  the 
Nativo  Habendo ;  and  there  are  many  autho- 
rities which  favour  the  opinion.  See  Glanv. 
rd>.  .'i,  c.  4.  Britt  Wing.  ed.  81,  a.  19  Hen.  6, 
3'i,  b.  Old  Tenures,  chap.  Villenage;  and 
the  form  in  which  the  confession  of  villensge 
bv  the  pisintiff's  witnesses  is  recorded,  in  Rast. 
iSntr.  tit.  Nativo  Habendo,  401,  a.  However, 
it  mini  be  eoofetscdi  that  io  Fitsberbert  the 
opinion  tsdeUfertd  with  a  qu^n;  aod  it  is  ao 
iiwpaocilaMo wllk Um kiA Mhtof  graotioc 
vUWMh*   "^  iso.;«Dtl»l, 


The 


Case, 


[*4 


his  title ;  and  at  least  two  witncnes  (f)  of  this 
description   were   requisite  for   the   purpose. 

(q)  Fitzh.  Nat.  Br.  78,  H.  &  Fitzb.  Abr. 
Villenage,  b6  5t  37. — Also  Briiton  says,  *  no 

*  masle  sauna  plosurs  nest  mie  receivable.' 
Britt.  Wingate's  ed.  p.  88.  It  is  remarkable 
that  femalo,  whether  sole  or  married,  were  not 
receivable  to  prove  villenage  against  men. 
'  Sannk  de  un  home  ne  puit  ne  doit  estre  trie 
'  par  femmes.'  Britt.  Wing.  ed.  p.  88.  The 
reason  ssttigned  b  more  antient  than  polite.  It 
is  said  to  be  '  pur  lour  fira^lte,*  and  also  be> 
cause  a  man  *  est  pluis  digoe  person  que  una 
M'eroe*  13  £.  1.  Fitzh.  Abr.  Villenage,  37.* 

*  "  Antiently  in  Scotland  the  testimony  of 
women  was  not  admiited  in  sny  case.    *  Ano 

*  woman  may  not  pass  upon  assize  or  be  wimess, 

*  nather  in  ony  instrument  or  contract,  nor  zit 

*  for  preiving  of  ane  persoun's  sge.    Neverthe- 

*  less  gif  tliair  be  ony  contraverser  tuiching  the 

*  age  of  ony  persoun,  the  mother  or  the  nurice 
(  may  be  ressavit  as  witnessis  for  preiving  thair- 

*  of.' "    Balfour's  Practicks,  p.  378. 

«  By  our  constant  usage,  women  are  not 
admitted  as  iostrumentary  witnesses,  and  as 
universal  custom  is  law,  so  1  doubt  not  but  it 
will  be  a  nullity  in  any  writing  that  is  attested 
by  witnesses,  who  are  both  or  even  one  of  thena 
women.  And  though  the  act  1681,  mentions  a 
subscribing  witness  with  the  masculine  particio 
(he),  yet  that  without  the  aubsequent  usage  ia 
not  exclusive  of  women/'  Bankton's  Inst.  b. 
1,  tit.  1,  sect.  7. 

**  Of  old,  women  were  rejected  in  most  cases, 
but  they  are  for  most  part  admitted,  unlets 
where  the  parties  ought  to  have  called  wit- 
nesses, for  then  they  have  themselves  to  blame 
that  did  not  make  use  of  others  ;  and  therdToro . 
women  are  altogether  incompetent  witnesses  to 
deeds  of  parties,  testaments,  or  instruments  of 
notaries.'*     Bankton,  biNik  4,  tit.  33,  a.  80. 

So  Stair  (book  4,  tit.  43,  s.  9,)  says,  tba(  in 
civil  cases  women  are  not  to  be  admitted  aa 
witnesses,  except  necessary. 

Sir  George  Mackenzie  (Probation  by  Wit- 
nesses) says,  **  Women  regular  iter  are  not  wit* 
nesses,  neither  in  civil  or  criminal  cases  with  as, 
nor  should  they  make  as  much  faith  with  ua,  •*• 
criminalibut.  The  reason  why  women  are  ex- 
cluded from  witnessing,  roust  be  either  that 
they  are  subject  to  too  much  compassion,  and 
so  ought  not  to  be  more  received  in  criminal 
cases,  than  in  any  civil  cases ;  or  else  the  law 
was  unwilling  to  trouble  them,  snd  thought 
it  might  learn  them  too  much  confidence,  and 
make  them  suliject  to  too  much  familiarity 
with  men,  and  strangers,  if  they  were  necessi* 
tated  to  vsgue  up  and  down  at  all  courts,  upoo 
all  occasions."  See  his  Criminals,  title  86,  s.  4. 

Erskine  (book  4,  tit.  8,  sect.  88,)  instructs 
OS,  that  women  were  rather  exempted  than  de- 
barred from  gif  iog  testimony. 

Of  the  progress  of  the  relaxation  of  this  rule 
I  kaov  nol  or  any  dreumstantial  history. 

Mr*  Hont  (Gomiii.  chap.  13,)  and  ibr.  Bur^ 


«] 


Tke  Negro  Can* 


A.  D.  1771. 


\l» 


Ntj,  ID  strict  wu  the  Itw  in  thii  respect,  diat 
ii  the  Natiro  Habendo  the  defeo(|aiit  was  not 
obtigcd  to  plead  to  the  claim  of  villenage,  un- 
loi  the  lunl  at  Ihe  time  of  declaring  on  his 
tide  bfogbt  his  witnesses  with  him  into  court, 
mk  iktf  acknowledged  themselres  fillebs, 
istfiwore  to  their  coosangninitv  with  the  de- 
(Wnt  (r)  ;  and  if  the  plaintiff  failed  in  ad- 
Mag  such  prefioos  evidence^  the  judgment 
if  ibe  eoart  was,  that  the  defendant  should  be 
ftef  for  ever,  and  the  plaintiff  was  amerced  for 
Ui&Jse  daim  (i).  In  other  actions  the  pro- 
Awtioa  of  soit  or  witnesses  by  the  plaintiff, 
pffvioosly  to  ihe  defendant's  pleading,  fell  into 
dsose  some  time  in  the  reign  of  Edward  the 
Ibrd;  and  ever  since,  the  entry  of  snch  pro- 
taioa  on  the  rolls  of  the  court  has  been  mere 
fan,  being  always  with  an  &c.  and  without 
MouDgthe  witnesses.  But  in  the  Natiro  Ha- 
hado  the  actual  production  of  the  suit,  and 
ilntbe  examination  of  them,  unless  the  defen- 
hal  released  {t)  it  in  court,  continued  to  be  in- 
ifcasalvie  CTcn  down  to  the  time  when  vil* 
rage  (a)  expired.— Such  was  Ihe  sort  of  tea- 
linoay,  by  which  only  Ihe  lord  could  support 
ike  liue  of  slavery  ;  nor  were  the  means  ot  de- 
faee  on  the  part  of  the  rillein  less  remarkable. 
If  he  eouM  prove  that  the  slavery  was  not  in 
kiiUsed  and  family,  heintitled  himself  to  li- 
boty.  The  atithor  of  the  Mirroir  (w)  ex- 
|RHly  saySi  that  proof  of  a  free  stock  was  an 
(fccnal  iwlence  against  the  claim  of  villenage ; 
Hd  even  in  the  time  of  Henry  the  sec<»nd  the 
ha  of  Engfland  was  in  this  respect  the  same, 
by  the  words  of  Glan? ille.  In  his 
of  ihe  trial  (x)  of  liberty,  he  says,  that 


(f >  Fttz.  Nat.  Br.  78,  H.  Fitzh.  Abr.  Ville- 
■STtSt  LJb.  Intrat.  97.  llast.  Entr.  401. 
Aqr.fr.  87. 

(i)  In  Fitzh.  Abr.  Villenage,  38,  there  is  an 
inUDce  of  such  a  judgment,  merely  for  the 
pliialiff*8  failure  in  the  production  of  bis  wit- 
BC8CS  at  the  time  of  declaring  on  his  title. 

(t)  8ee  19  H.  6,  39  b.  a  case  in  which  the 
4f(ni«lAot  releases  the  examination  of  the  suit. 

(u)  The  last  entry  in  print  of  the  proceed- 
is|s  in  a  Native  H abendo  contains  ibe  names 
•f  cfae  secta  or  suit  produced,  and  their  acknow- 
kigairat  of  villeiiajB^e  on  oath.  See  the  case 
•f  Jemey  aflrainst  Fmcb,  Hill.  18  Eliz.  C.  B. 
U.  Efiir.  406,  b.  (w)  jVlirr.  c.  2,  §  28. 

(g)  Glaov.  lib.  5,  c.  4. 

Mt  (Treatise  on  tar.  branch,  of  the  Crim.  Law 

if  likasiand,  chap.  17,)  hare  cited  several  cases, 

isd  quoted  other  authorities,  from  which   it 

ly^cars  that  the  rule  was  recognized  to  so  late 

t  ffnod  as  the  beginoiiig  of  the  18th  century. 

hnaow  abrogaled  (how  or  when  I  have  not 

•wa  distinctly  staled)  »» except*'  says  Mr.  Bur- 

••«,  •*  in  ihe  case  of  instruineotary  witnesses, 

yWe  wofoen  are  in  practice  still  excluded. 

I  kaow  of  iio  case,  bowerer.  where  this  point 

wii  e»ev  mrgoed,  or  receifed  a  decision :  and  it 

•JnjAtful  whether  such  an  objecUon  wouM 


the  iierson  cluming  it  shall  produce  *  plnres  de 
prozimis  et  consanguineis  de  eodem  stipite 
unde  ipse  ezierat  exeuntes ;  per  quorum  liber- 
tates,  si  fuerint  in  curift  recognitae  et  probatoe, 
liberabitur  it  jogo  servitutis  qui  ad  libertatem 
prochimatur.'  But  the  special  defences  which 
the  law  permitted  against  villenage  are  still 
more  observable ;  and  prove  it  beyond  a  con* 
tradiction  to  be  what  the  author  of  the  Mirroir 
emphatically  stiles  it  (y),  a  slavery  of  so  great 
an  antiquity  that  no  free  stock  can  be  found  by 
human  remembrance.  Whenever  the  lord 
sued  to  recover  a  villein  by  a  Native  Habendo, 
or  alledged  villenage  in  other  actions  as  a  dis* 
ability  to  sue,  the  person  claimed  as  a  villein 
might  either  plead  generally  that  be  was  of 
free  condition,  and  on  the  trial  of  this  general 
issue  avail  bjmself  of  every  kind  of  defence 
which  the  law  permits  against  villenage ;  or 
he  might  plead  specially  any  single  fact  or 
thing,  which  if  true  was  of  itself  a  legal  bar  to 
the  claim  of  villenage,  and  in  that  case  the 
lord  was  \:ompellable  to  answer  the  special 
matter.  Of  this  special  kind  were  the  pleas  of 
Irastardy  and  adventif.  The  former  was  an  al- 
legation by  the  supposed  villein  that  either  him- 
self or  his  father,  grand-father  or  other  male 
ancestor,  was  bom  out  of  matrimony ;  and  this 
plea,  however  remote  the  ancestor  in  whom 
the  bastardy  was  alleged,  was  peremptory  to 
the  lord ;  that  is,  if  true  it  destroyed  the  claim 
of  villenage,  and  therefore  the  lord  could  only 
support  his  title  by  denying  the  fact  of  bastardy. 
This  appears  to  have  been  the  law  from  a  great 
variety  of  the  most  ancient  authorities.  The 
first  of  them  is  a  determined  case  so  early  as 
the  Idth  of  Edward  the  second  (x),  and  in  all 
the  subsequent  cases  (dS  the  doctrine  is  received 
for  law  without  once  being  drawn  into  ques- 
tion. In  one  of  them  (6)  the  reason  whv  bas- 
tardy is  a  good  plea  in  a  bar  against  villenage 
is  expressed  in  a  very  peculiar  manner ;  for 
the  words  of  the  book  are,  "  when  one  claims 
any  man  as  his  villein,  it  shall  be  intended  al- 
ways that  he  is  his  villein  by  reason  of  stock, 
and  this  is  the  reason  that  there  shall  be  an  an- 
swer to  the  special  matter  where  he  alleges 
bastardy ;  because  if  his  ancestor  'was  a  Imis-» 
tard,  he  can  never  be  a  villein,  unless  by  sub- 

(y)  <  Est  subjection  issuant  de  cy  grand  an-^ 

*  tiquite,  que  nul  franke  ceppe  purra  estre  trove 

*  per  humaue    remembrance.'      Mirr.    c.   2, 
§28. 

(x)  13  E.  2,408. 

(a)  Hill.  19  E.  2.  Fitzh.  Abr.  Villenage, 
32.— 39  E.  3,  36.-43  E.  3,  4—19  Hen.  6, 
11  &  12.— 19  Hen.  6,  17.— Old  Tenures, 
chap.  Villenage.- Co.  Litt.  123,  a.  In  the 
case  19  H.  6,  17,  there  is  something  on  the 
trial  of  bastardy  in  cases  of  villenage,  explain- 
ing when  it  shall  be  tried  by  the  bishop's  certi- 
ficate and  when  by  a  jury.  See  on  the  same 
subject  Fitzh.  Abr.  Villenage,  32,  &  Lib.  Intrat. 
S5,  a.  which  latter  book  coatains  the  record  of 
a  case  where  the  trial  was  by  the  bishop. 

(b)  43  £.  3, 4. 


47]  12  GEORGE  III. 

■equent  tcknowledgrment  io  a  court  of  record." 
The  force  of  this  reason  will  sppear  fully  on 
recollection,  that  the  law  of  England  always 
derives  the  condition  of  the  issue  from  that  of 
the  father,  and  that  the  father  of  a  bastard 
bein^  in  law  uncertain  (c),  it  was  therefore  im- 

Cible  to  prore  a  bastard  a  slave  by  descent, 
espect  to  the  plea  of  adventif,  there  isaome 
little  confusion  in  the  explanation,  our  year- 
books pre  us,  of  the  persons  to  whom  the  de* 
scrintion  of  adventif  is  applicable ;  but  the  form 
•f  toe  plea  will  best  shew  the  precise  meaning 
of  it.    It  alledged  (cQ,  that,  either  the  person 
himself  who  was  claimed  as  a  villein  regardant 
to  a  manor,  or  one  of  his  ancestors,  was  born  in 
a  county  different  from  that  in  which  the 
manor  was,  and  so  was  free,  which  was  held 
to  be  a  necessary  conclusion  to  the  plea.   This 
in  general  was  the  form  of  the  plea,  hut  some- 
times it  was  more  particular,  as  in  the  follow- 
ing case  (e).     In  trespass,  the  defendant  pleads 
that  the  plaintiff  is  his  villein  regardant  to  his 
manor  of  Dale ;  the  plaintiff  replies,  that  his 
great-grandfather  was  bom  in  C,  in  the  county 
of  N,  and  from  thence  went  into  the  county  of 
8,  and  took  lands  held  in  bondage  within  the 
manor  to  which  the  plaintiff  is  supposed  to  be 
a  villein  regardant,  and  mo  after  time  of  me- 
mory his  great-grandfather  was  adventif.    It  is 
plain  from  this  case,  that  the  plea  of  adventif 
was  calculated  to  destroy  the  claim  to  villenage 
regardant,  by  shewing  that  the  connection  of 
the  supposed  villein  and  his  ancestors  with  the 
manor  to  which  they  were  supposed  to  be  re- 
gardant, had  begun  within  time  of  memory ; 
and  as  holding  lands  by  villein-services  was 
anciently  deemed  a  mark  (y),  though  not  a 
certain  one,  of  personal  bondage,  I  conjecture 
that  this  special  matter  was  never  pleaded,  ex- 
cept to  distinguish  the  mere  tenant  by  villein 
services  from  the  villein  in  blood  as  well  as 
tenure.    But  whatever  might   be  the  cases 
pro|ier  for  the  plea  of  adventif,  it  is  one  other 
incontrovertible  proof,  in  addition  to  the  proofs 
alrcaily  mentioned,    that    no  slavery   having 
had  commencement  within  time  of  memory 
was  lawful  in  England ;  and  that  if  one  an- 
cestor could  be  found  whose  blood  was  nn- 
tarnirhed  with  the  stain  of  slavery,  the  title 
of  villenage  was  no  longer  capable  of  being 
sustained. 

.   (e)  Co.  Lilt.  123,  a. 

(d)  13  E.  1.  It.  North.  Fitz.  Abr.  Ville- 
oage  36.  19  E.  2.  Fitz.  Abr.  Villenaire  32.  33 
E.  3.  Fiiz.  Abr.  Visne  2.— 39  £.  3,  36. — 
41  E.  3.  Fitz.  Abr.  Villenage  7.-43  K.  3,  31. 
—50  E.  3.  Fitz.  Abr.  Villenage,  24.— 19  H.  6, 
11.— 19  H  6, 17. 

(e)  31  E.  3.  Fiiz.  Abr.  Visne  1. 

(f)  Fiizlierbert  says,  "  if^  a  man  dwells  on 
lands  which  have  been  held  in  villenage  time 
out  of  niiud,  he  shall  be  a  villein,  and  it  is  a 
good  pre«cripiif»n ;  and  against  this  prescription 
tt  is  a  good  plea  to  aay  that  hia  father  or  grand- 
fiuher  WM  mimttiffi  •  Ibs.  Fill.  ifcr.  Till*. 

MgVfli. 


The  Negro  Case. 


[48 


Such  were  the  striking  peculia-    hqv  it  ii  uut 
rities  in  the  manner  of  making  title    |^  ntn  or 
to  a  Tillein,  and .  of  contesting  the    tS^hSSe 
question  of  liberty ;  and  it  is  scarce    Suot!*"^ 
possible  to  attend  to  the  enumera- 
tion of  them,  without  anticipating  me  in  the 
inferences  1  have  to  make. — ^The  law  of  Eng- 
land onl^  knows  slavery  by  birth  ;  it  requires 
prescription  in  making  title  to  a  slave ;  It  re- 
ceives on  the  lord's  part  do  testimony  except 
such  as  proves  the  slavery  to  have  been  always 
in  the  blood  and  family,  on  the  villetn'a  part 
every  testimony  which  proves  the  slavery  to 
have  been  once  out  of  his  blood  and  family  ; 
it  allows  nothing  to  sustain  the  slavery  except 
what  shewa  its  commencement  beyond  the  time 
of  memory,  every  thing  to  defeat  thealaverj 
which  evinces  its  commencement  within  the 
time  of  memory.    But  in  our  American  colo- 
nies and  other  countries  slavery  may  be  by 
captivity  or  contract  as  well  as  by  birth ;  no 
prescription  is  requisite;    nor  is  it  necessary 
that  slavery  should  be  in  the  blood  and  family, 
and  immemorial.    Therefore  the  law  of  Eng- 
land is  not  applicable  to  the  slavery  of  our 
American  colonies,  or  of  other  countries. — If 
the  law  of  England  would  permit  the  intro- 
duction of  a  slavery  commencing  out  of  Eng- 
land, the  rules  it  prescribes  for  trying  the  tiUe 
to  a  slave  would  be  applicable  to  such  a  slavery  ; 
but  they  are  not  so ;  and  from  thence  it  is  evi- 
dent that  the  introduction  of  such  a  slavery  h 
not  permitted  by  the  law  of  England. — ^The 
law  of  England  then  excludes  every  slaTery 
not  commencmg  in  England,  every  slavery 
though  commencing  there  not  being  antient 
and  immemorial,    l^llenage  is  the  only  slavery 
which  can  possibly  answer  to  such  a   de- 
scription, and  that  has  long  expired  by  the 
deaths  and  emancipathns  of  all  those  who 
were  once  the  objects  of  it.     Consequently 
there  is  now  no  slavery  which  can  be  lawful  in 
England,  until  the  legislature  shall  interpose 
its  authority  to  make  it  so. 

This  is  plain,  unadorned,  and  direct  reason- 
ing ;  it  wants  no  aid  from  the  colours  of  art,  or 
the  embellishments  of  language;  it  is  com- 
posed of  necessary  inferences  from  facts  and 
rules  of  law,  which  do  not  admit  of  contradic- 
tion ;  and  I  think,  that  it  must  be  vain  to  at- 
tempt shaking  a  superstructure  raised  on  sucb 
solid  foundations. 

As  to  I  he  other  arguments  I  have  to  adduce 
against  the  revival  uf  domestic  slavery,  I  do  con- 
fess that  they  are  less  powerful,  being  merely 
presumptive.  But  then  I  must  add,  that  they 
are  strong  and  violent  presumptions ;  such  at 
furnish  morecertiTin  grounds  of  judicialdecisioop 
than  are  to  be  had  io  many  of  the  cases  which 
l>ccome  the  subjects  of  legal  controversy.    For 

2dly.    1  infer  that  the  law  of    ad.  Ariumcrt 
England   will  not   permit  a  new    JSlSJnlfroS* 
slavery,  from   the   fact  of  I  here    iiiri«itor 
never  yet  having  been  anv  slavery    h'!^f"bS 
but  viAenage,  and  from  the  actual    ?"?*>';^nr 
eztinetion  of  that  antient  slavery.    •■4  fvom  im 
IfaaewsUrcry  coaM  have  law-    tSu'SSHt!^ 


49] 


The  Negro  Case. 


A.  D.  1771. 


[50 


fnllj  eomineiiced  here,  or  lawfully  hare  been 
intndaced  from  a  foreign  country,  is  there  the 
mH  remote  prohabilily,  that  in  the  course  of 
ao  Btay  centuries  a  new  slavery  should  oe?er 
har<  arisen  ?    If  a  new  race  of  slaves  could 
kie  been  iotroduced  under  the  denomination 
•f  riHeiosi,  if  a  new  slavery  could  have  been 
hm  time  to   time  engrafted  on  the  antient 
Mck,  would  the  latvs  of  villenage  have  once 
kcame  obsolete  for  want  of  ohjcctii,  or  would 
Mt  i  successive  supply  of  slaves  .have  conti- 
■aed  their  operation  to  the  present  times  ?  But 
Mtvithstanding  the  vast  extent  of  our  com- 
■ercial    connections,   the  fact  is  confessedly 
•iberwise.      The  autient  slavery  has  once  ex- 
pired ;  neither  natives  nor  foreif^ners  have  yet 
Mceeeded  in  the  introduction  of  a  new  slavery ; 
nd  from    thence  the  strongest  presumption 
arifts,  that  the  law  of  England  doth  not  permit 
nch  an  introduction. 

u  Arriami  Sdly.  1  losist,  that  the  unlaw- 
tmai  'fran  fulncss  of  introduciii^'  a  new  sla- 
ifernin  uT  very  into  Eugknd,  from  our  Ame- 
Uffn^T  rican  colonies  or  any  other  coun- 
eaiirjrt.  i^y^  jg  de<lucil)le-froiii  the  rules  of 

the  Eo$;1ish  law  concerning  contracts  of  ser- 
vice. Tlie  law  of  England  will  not  permit  any 
Ban  to  enslave  himsetf  by  contract.  The  ut-* 
■mst,  which  our  law  allows,  is  a  contract  to 
Krve  for  life  ;  and  some  perhajis  may  eyen 
doubt  the  ralidity  of  such  a  contract,  there 
keiit^  nu  iletermined  cases  directly  atfirming  its 
hwfuliKss.  I n  the  rei(;n  of  Henry  the  4th  (^), 
there  is  a  case  of  debt,  brou;^ht  by  a  servant 
S'^aiokt  the  master*:;  executors,  on  a  retainer  to 
Krve  for  term  of  life  in  peace  and  war  for  100 
^AiTf  a- year ;  but  it  was  held,  that  Uebt  did 
noiUdr  want  of  a  speciulity ;  wliicli,  as  was 
a«i^'J,  woulil  not  have  been  necessary  in  the 
cut  ut' a  common  labourer's  salary,  because, 
»» tiie  case  in  explained  by  Brooke  in  abridging 
ii.  (he  Utter  is  bound  to  serve  by  statute  (A). 
Tii;4  case  is  the  only  one  f  can  find,  in  ivhich 
a  contract  to  ferve  for  life  is  mentioned  ;  and 
ev«n  in  this  case,  there  is  no  judicial  decision 
M  the  force  of  it.  Nor  did  the  nature  of  the 
civk  require  any  opinion  upon  such  a  contract ; 
tbc  action  not  being  to  establissli  the  contract 
a^in»t  the  servant,  but  to  enforce  payment 
i^Tsinst  the  master's  executors  for  arrears  of 
salary  in  respect  of  service  actually  per- 
fcnned ;  and  therefore  this  case  will  scarce 
War  any  inference  iu  favour  of  a  contract  to 
Mrve  for  life.  Certain  also  it  is,  that  a  service 
for  life  in  Ent;land  is  not  usual,  except  in  the 
€a»fnf  a  militar}'  person ;  whose  service,  though 
ia  effect  for  life,  is  rather  so  by  the  o|)cration 
«Cibe  yearly  acts  for  regulating  the  army,  and 
ef  tb4*  pf-rpetaal  act  for  governing  the  navy, 
tiiin  iu  cnn<iequenceof  any  express  agreement. 
Hiiwrver,  1  do  not  mean  absolutely  to  ileny 
Ike  lawfulness  of  agreeing  to  servo  for  life; 
■•r  Will  the  inferences  1  shall  draw  from  the 
nicsof  law  concerning  servitude  by  contract, 
be  in  the  least    affected  by  admitting   such 


(i)  «  H.  4.  14. 


(h)  Bro.  Abr.  Dett.  63. 


agreements  to  be  lawful.  The  law  of  England 
may  perhaps  give  effect  to  a  contract  of  ser- 
vice for  life;  but  that  is  the  ne  plus  ultra  of 
servitude  by  contract  in  England.  It  will  not 
allow  the  servant  to  invest  the  master  with  an 
arbitrary  power  of  correcting,  imprisoning,  (i) 
or  alienating  him;  it  will  not  permit  him  to 
renounce  the  capacity  of  acquiring  and  enjoy- 
ing property,  or  to  transmit  a  contract  of  ser« 
vice  to  his  issue  {k).  Iu  other  word*'',  it  will  not 
permit  the  servant  to  incorporate  into  his  con- 
tract the  ingredients  of  slavery. ;  Aud  why  ia 
it  that  the  law  of  England  rejects  a  contract  of 
slavery?  The  only  reason  to  be  assigned  is, 
that  the  law  of  England,  acknowledging  only 
the  autient  slavery  which  is  now  expired,  will 
not  allow  the  introduction  of  a  new  species, 
even  though  founded  on  consent  of  the  party. 
The  same  reason  operates  with  double  force 
against  a  new  slavery  founded  on  captivity  in 
war,  and  introduced  from  another  country. 
Will  the  law  of  England  condemn  a  new  sla- 
very commencing  by  consent  of  the  party,  and  at 
the  same  time  approve  of  one  founded  on  force, 
and  most  probably  on  oppression  also?  Will  the 
law  of  England  invalidate  a  new  slavery  com- 
mencing in  this  country,  when  the  title  to  the 
slavery  may  be  fairly  examined ;  and  at  the 
same  time  give  efiect  to  a  new  slavery  intro- 
duced from  another  country,  when  disproof  of 
the  slavery  must  generally  be  impossible? 
This  would  be  rejecting  and  receiving  a  nevf 
slavery  at  the  same  moment ;  rejecting  slavery 
the  least  odious,  receiving  slavery  the  most 
odious :  and  by  such  an  inconsistency,  the 
wisdom  and  justice  vT  the  English  law  would 
be  completely  dir'ionoured.  Nor  will  this  rea- 
soning be  w^ukened  by  observing  that  our  law 
permittc::!  vilienage,  which  was  a  slavery  con- 
fessed to  originate  from  force  ^nd  capttuty  in 
war;  because  that  was  a  slavery  coeval  with 
the  first  formation  of  the  English  constitution^ 
and  conspqunnlly  had  a  commencement  here 
prior  to  the  establishment  of  those  rules  which 
the  common  law  furnishes  against  slavery  by 
contract. 

Having  thus  explained  the  three    ExaminaCom 
great  arguments  which  I  oppose  to    J[,  [{|*  "J^J^^ 
the  introduction  of  domestic  sla-     oi-uwj 
very  from  our  American  colonies,    bciotc  tin.- 

(i)  Lord  Ilobart  says,  **  the  body  of  a  free- 
man cannot  he  made  subject  to  distress  or  im- 
prisonment by  contract,  but  only  by  judg- 
ment." Hob.  61.  I  shall  have  occaMon  to 
make  use  of  this  authority  agaiu  in  a  subse- 
quent part  uf  this  argument. 

(k)  Mr.  IVIolloy  thinks,  that  servants  may 
contract  to  serve  for  life ;  but  then  he  adds, 
"  but  at  this  day  there  is  no  contract  of  the 
ancestor  can  oblige  his  posterity  to  an  here- 
ditary service ;  nor  can  such  as  accept  those 
servants  exercise  the  ancient  right  or  dominion 
over  them,  no  not  so  much  as  to  use  an  extra- 
ordinary rigour,  without  subjecting  themselves 
to  tbc  law."  Moll,  de  Jur.  Marit.  l^t  ed.  b.  3» 
c.  1,  s.  7,  p.  U98. 

E 


51]  12  GEORGE  IIL 

StilSJjr  •'  er  any  foreign  country,  it  is  now 
proper  to  enquire,  how  far  the  sub- 
ject \s  affected  by  the  casei  and  judicial  deei- 
■ioni  since  or  just  before  the  extinction  of  ?il- 
lenaf^e. 

The  first  case  on  the  subject  is  one  mentioned 
in  Mr.  Rush  worth's  Historical  Collections  (/); 
and  it  is  ihere  said.  That  in  the  11th  of  Eliza- 
beth, one  Cartwrifjrht  brought  a  slave  from 
Bussia,  and  would  scour^^e  him ;  for  which  he 
fras  questioned  ;  and  it  was  resolved,  that  En(f- 
land  was  too  pure  an  air  for  a  slave  to  breathe 
in.  Ill  order  to  judge  what  degree  of  credit  is 
due  to  the  representation  of  this  case,  it  will  be 
proper  to  state  from  whom  Mr.  Rusbworth  re- 
ports it.  In  1637,  there  was  a  proceeding  by 
information  in  the  Star-Chamber  against  the 
famous  John  Lilbume,  for  printing  and  pub- 
lishing a  libel ;  and  for  bis  contempt  in  refusing 
to  answer  interrogatories,  he  was  by  order  of 
the  Court  imprisoned  till  he  should  answer,  and 
also  whipped,  pilloried,  and  fined.  Uis  iropri- 
aonment  continued  till  1640,  when  the  Lioog 
Parliament  befiran.  He  was  then  relessed,  and 
the  House  of  Commons  impeached  the  judges 
of  the  Star -Chamber  for  their  proceedings 
•gainst  Lilburne.  In  speaking  to  this  impeach- 
ment, the  managers  of^the  Commons  cited  the 
case  of  the  Russian  slave.  Therefore  the  truth 
of  the  case  doth  not  depend  upon  John  Lil- 
burne's  assertion,  as  the  learned  observer  on  the 
antient  statutes  (m)  seems  to  apprehend ;  but 
reals  upon  the  credit  due  to  the  managers  of 
the  Commons.  When  this  is  considerni,  and 
that  the  vear  of  theL>reign  in  which  the  case 
happened  is  mentioned,  with  the  name  of  the 
person  who  brought  the  slave  into  England ; 
that  not  above  73  or  73  years  had  intervened 
between  the  fact  and  the  relation  of  it ;  and  also 
that  the  case  could  not  be  supposed  to  have 
any  influence  on  the  fate  of  the  impeachment 
•gainst  the  judges ;  1  see  no  great  objection  to 
a  belief  of  the  case.  If  the  account  of  it  is 
true,  the  plain  inference  from  it  is,  that  the 
•lave  was  become  free  by  bis  arrival  in  Eng- 
land. An^  other  construction  renders  the  case 
unintelligible,  because  scourging,  or  even  cor- 
rection of  a  severer  kind,  was  allowed  by  the 
law  of  England  to  the  lord  in  the  punishment 
of  his  villem ;  and  conseouentiv,  if  our  law  had 
recognized  the  Russisn  slave,  bis  master  would 
Jiave  been  justified  in  scourging  him. 

The  first  case  in  our  printed  Reports  is  that 
of  Butts  against  Penny  (n),  which  is  said  to 
have  been  adjudged  by  the  Court  of  King's- 
bench  in  Trinity  term,  S9th  of  Chsries  the  3d. 
It  was  an  action  of  trover  for  ten  (o)  negroes ; 
•nd  there  was  a  special  verdict,  finding,  that 

(I)  Rushw.  ▼.  3,  p.  468. 

(m)  Barr.  Observ.  on  Ant,  Stat.  Sd  edit, 
p.  241. 

Ca;  2  Lev.  301,  and  3  Keb.  785.  See  Hill, 
f  9  Char.  2,  B.  U.  Rot.  1116. 

(o)  According  to  Levins^  the  action  was  for 
too  negroes ;  but  it  it  •  oifttke,  the  record 
msatioDiiig  10. 


The  Negro  Case. 


[M 


the  negroes  were  infidels,  subjects  to  an  infidel 
prince,  and  usually  bought  and  sold  in  India 
as  merchandize  by  the  custom  amongst  mer« 
chants,  and  that  the  plaintiff  had  bought  them, 
and  waa  in  possession  of  them  ;  and  that  the 
defendant  took  tliem  out  of  his  possession.  The  ^ 
Court  held,  that  negroes  being  usually  bought 
and  sold  amongst  merchants  in  India,  and  be* 
ing  infidels  Qi),  there  might  lie  a  properly  ia 
them  sufficient  to  aiaintain  the  action ;  and  it 
is  said  that  judgment  Nisi  was  given  for  the 
plaintiff,  but  that  on  the  prayer  of  the  counsel 
for  the  defendant  to  be  further  heiird  in  the 
case,  time  was  given  till  the  next  term.  lu 
this  way  our  reporters  state  the  case ;  and  if 
nothing  further  appeared,  it  might  be  cited  ai 
an  authority,  though  a  very  feeble  one,, to  sheir 
that  the  master's  propert^r  in  his  negro  slaves 
eoDtinues  after  their  arrival  in  England,  an4 
conseonentljir  that  the  negroes  are  not  emanci- 
pated by  being  brought  here.  But  having  • 
suspicion  of  some  defect  in  the  state  of  the 
case,  1  deaired  an  examination  of  the  Roll  (9) ; 
and  according  to  the  account  of  it  given  to  me, 
though  the  declaration  ia  for  negroes  generally 
in  I^ndon,  without  any  mention  of  foreign 
parts,  yet  from  the  special  verdict  it  appears, 
tliat  the  action  was  really  brought  to  recover 
the  value  of  negroes,  6f  which  the  plaintiff  had 
been  possessed,  not  in  England,  but  in  India* 
Tiierefore  this  case  would  prove  nothing  in  fa- 
vour of  slavery  in  England,  even  if  it  bad  re- 
ceived the  Court's  ju^ment,  which  however 
it  never  did  receive,  there  being  only  an  *  olte- 
*  rius  consilium'  on  the  Roll. 

The  next  case  of  trover  was  between  Oell 
and  Cleve  in  the  Common-Pleas,  and  was 


7. 


(p)  According  to  this  reasoning,  it  is  lawful 
to  have  an  infidel  alave,  but  not  a  Christian 
one.  This  distinction,  between  persons  of  op- 
posite persuaaions  in  religion,  is  very  ancieut. 
Amongst  the  Jews,  the  condition  of  toe  Hebrew 
slave  had  many  advantages  over  that  of  •  slave 
of  foreign  extraction.  [See  sect.  37,  of  the  Dis- 
sertation on  Slavery  prefixed  to  Potgiesser.  Jua 
Germ,  de  Stat.  Serv.  J  Formerly  too  the  Ma- 
homedans  pretended,  that  their  religion  did  not 
allow  them  to  enslave  such  as  should  embrace 
it ;  but,  as  Bodin  says,  the  opinion  was  little  at- 
tended to  in  practice.  (See  Bodin,  de  Republica, 
lib.  1,  cap.  5,  de  imperio  servili.)  A  like  distinc- 
tion was  made  in  very  early  times  amongst 
Christisns ;  and  the  author  of  the  Mirroir  in  one 

Klace  expresses  himself,  as  if  the  distinction 
ad  been  adopted  by  the  law  of  England.  (See 
the  Mirr.  c.  3,  s.  38.)  But  our  other  ancient 
writers  do  not  take  the  least  notice  of  such  • 
distinction,  nor  do  I  find  it  once  mentioneil  in 
the  year-books ;  which  are  therefore  strong  pre- 
aumptive  evidence  against  the  reception  of  it 
in  our  courts  of  justice  as  law,  however  the 
opinion  may  have  prevailed  amongst  divines 
and  others  m  speculation.  See  Barr.  Obaerv. 
Ant.  Stat  3  edit.  p.  239. 

(q)  The  Bell  wm  eyamiori  for  me  bj  • 
friend. 


Tfie  Negro  Case. 

.  ._ _ _.      m  SlhorWilliam  SDtl 

la  lb«  report  or Ibiicue(r),  tlieCdun 
sbhI  l«  bave  held,  that  Iroter  will  lie  far  a 
■*tnWy,  brcause  n^i^ro^i  are  liealhens ;  Bud 
tfwrfuc  m  man  may  hare  proi^erl^  In  them, 
Mddw  Court  without  avermvot  will  lake  no- 
«BFlh*l  Ihev  are  b^lhens.  On  eiaminalion  of 
Ac  IMI  (•).*!  llDil  tlial  the  action  was  brought 
trrariona article* of  merchaiidize  aa  welt  at 
AewfTo;  anil  I  iiupeci,  tliat  ia  lliis  cB«e,  as 
•cll  a*  the  Tonner  one  of  Dutu  aui]  I'puny,  the 
actim  wa«  fur  ■  neTro  in  America ;  but  ibe  de- 
cbntton  belna:  laij  ^nerally ,  and  there  btiiig 
•■■prciftl  verdict,  it  n  now  loo  late  to  nacertaia 
tW  fiteL  I  will  therefore  luppose  tbe  action 
bfaB*e  been  for  a  negro  in  biiglaiid,  and  ad- 
ait  that  it  tends  la  shew  the  lawlulnen  of  har- 
»f  negn  alave*  io  England.  But  then  if  the 
MM  ia  la  be  anderslood  in  Ibii  <eiiEe,  I  eay 
ttat  it  appears  to  have  been  ailjiulgeJ  without 
Mlnnn  «r|^n>enl ;  that  there  I9  no  rrewniag 
fadMKport  of  tbJKcaselo  impeach  tbe  )>Hn- 
■flaaaftaiT,  on  which  I  have  urgued  a^Hiast 
tM  r«*i*al  of  lUiery  in  Encjland ;  ibil  unless 
tbiac  principlea  cm  be  cniilroverled  with  suc- 
•n.  It  will  tw  impossible  Io  sunain  the  auiho- 
ntjafaurb  a  case;  and  further,  tbatilalandi 
-  ■■  -d  by  a  subsequent  case;  in  which 
•a  al'slufery  came  direcily  before  the 

Tbe  anty  other  reported  case  of  trover  ia 
tM  aT  Kmtlh  agaiiiit  fiuulil,  which  was  ad- 
>d|nl,  UkIi.  4  Ann,  in  ibe  KingVbench.  Io 
barer  (()  for  screral  things,  anil  among  tbe 
mt  far  a  oegro,  not  guilty  waspleaded,  and 
4(ra  waa  a  verdict  tor  the  plainlilf  with  several 
^■Hia,  30/.  being  gi*en  for  Ibe  negro  ;  and 
•huiflianient  on  a  molian  in  arrest  of  juilg- 
■-la,  lb«  Courl  held,  that  trover  did  not 
I*  Ir  a  oegrn.  If  in  Ibis  case  the  action 
■M  br  a  negro  in  Erijflanil,  tbe  judgment 
B  It  ii  >  direct  contradiction  to  the  caee 
•TGdly  and  Cleve.  But  1  atn  inclined  to 
Ihak,  that  In 'this,  as  well  as  in  the  former 
tma  vf  trover,  the  negroea  for  which  the 
uaoM  wvrc  brought,  were  not  in  England  ; 
ia<  tbat  IB  ail  of  Ibeiii  the  question  was 
at  aa  itie  lawfulness  of  having  negro  slaves 
i«  Ensland,  bol  merely  whether  troier  wag 
0*  pniptr  kind  of  artion  fur  recovering  the 
falucal  a  oi-gn)  unlawfully  detained  from  the 
•raw  ia  America  and  Inilia.  The  things,  for 
■hiA  intvrr  to  griifral  lies,  are  those  in  which 
e  property,  without 


>  tb*  u 


f  llien 


I  tht 


■sauv'a  power  over  Itie  stave  dulh  nut  extend 
tahaa  TiTr,  and  couteijuently  the  master's  pro- 
ffflT  in  iltaalateia  in  Mime  degree  qualified 
u'liiBiled.  Buppoaing  tberefore  the  cases  uf 
Mirr  ID  bare  b«wa  delermiaed  on  ttiis  dis- 
■nioo,  I  will  not  insisl  upon  any  present 
-  -^t  frum  ibem  in  argument ;  ih'iiigh 
Imi  iif  llirni,  if  it  will  benr  any   tnateriul 


1>1   I  L.  Baym.  1*7. 

fij  (life  TriiL  A  W.A:M.  C.  O.  IL.I1.  NMOT 

(ij  3Wk.  0M.— Sotldao,  1 L.  Rayin.  UT. 


[54 


the  King's  bench  in  Hilary  Sth  si 
lisni  the  3d,  Trespass  vi  ti  artnis  whs  bn)ii|<bt 
by  Chamberlain  (u)  against  Harvey,  fur  lakiii(f 
a  negro  vf  the  value  uf  100/.  and  by  tlie  special 
verdict  it  appears,  that  tbe  negro,  for  Hhich 
the  pluinlilT  sued,  bad  been  brouglit  from  Bar- 
badoes  into  Eneland,  and  was  here  bsjilized 
without  the  plaintiff's  consent,  and  at  ibe  tima 
when  the  treiipass  was  alleged,  was  in  the  de- 
fendant's service,  and  had  67.  a-year  lor  wages. 
In  the  argUDieniof  tliis  case,  three  qiiesiions 
were  made.  One  was,  wliether  tbe  fads  in 
the  verdict  snlEcienily  shewed  that  the  plaintiff 
had  ever  had  a  vested  property  in  tlie  n^ro  (m)  t 
anoltier  was,  whether  that  prO|ierty  was  not 
devested  by  bringing  Ibe  negro  into  England  : 
and  the  third  wss,  whether  trespass  lor  laking 
a  man  of  the  value  of  iOOl,  was  the  proper  ac- 
tion. After  several  argumenls,  Ibe  Court  gava 
Judgment  against  (be  plaintiff.  Bull  do  cuo- 
tess,  tbat  in  the  reports  we  have  of  Ihe  case,  no 
opinion  on  the  great  question  of  slavery  is 
mentioned  ;  it  Incoming  unnecesssry  to  de- 
clare one,  as  llie  Court  held,  thai  Ibe  ac- 
tion should  have  been  an  action  to  recoret 
damages  for  the  loss  of  Ibe  service,  and  not  to 
recover  the  value  of  the  slave.  Of  this  case, 
therefore,  1  shall  not  attempt  to  avail  my»elf. 

But  the  next  case,  wbicli  was  an  action  of 
Indebitatus  Assumpsit  in  the  King's-bench  by 
Smith  against  Browne  nod  Cowper  (f),  la 
more  to  the  purpose.  The  plaintiff  declared 
for  SO/,  for  a  negro  aold  by  him  to  tbe  deten- 
danis  io  London  ;  and  on  motion  in  arrest  of 
judgment,  tbe  Court  held,  that  ihe  plaintiff 
should  have  averred  in  Ibe  declaration,  tbat  the 
negro  at  ibe  lime  of  tlie  sate  was  in  Virginia, 
and  tbat  negroes  by  tbe  laws  and  slalutes  of 
Virginia  are  saleahli'  Q/].  In  Ibe^e  words  ibere 
is  a  direct  opinion  aguinst  the  slavery  of  ne< 
groes  in  England:  fur  if  it  was  laHful,  the 
negro  would  hare  been  saleable  and  transfer* 
able  here,  a«  well  as  in  Virginia  j  and  staling, 
that  tbe  negro  at  the  time  of  Ibe  sale  wa>  ia 
Virginia,  could  not  have  been  ejiseiiiisl  lu  Itta 


(u)  1  L.  Raym.  146.  Carlli,  396,  and  5 
Moil.  mi). 

(ai)  The  fuels  which  occasioned  this  ques- 
tion, 1  have  umiiteit  in  the  stale  of  (be  case ; 
because  ihev  are  nut  material  to  tlie  questiou  of 
slavery  in  Entilnnd. 

(i)  a  iiiulk.  C66.  Tbe  case  is  not  reported  . 
iu  any  other  bunk  ;  and  in  Salkehl  the  lime 
when  (he  c*<ie  was  delermuieil  is  iiinitled.  But 
it  appears  to  have  been  iu  the  Klng'shench, 
by  Ibe  inentiun  of  lord  chief  juiiice  Holt  and 


Mr.  J.  I 


(y)  Tbe  reporter  adds,  that  Ibe  C'Hirt  di- 
rected, thai  the  plaintiff  should  amend  his  ile- 
clamlion.  But  after  venliui  it  caooot  surely 
be  tbe  practice  to  permit  so  essential  an  amend- 
ineiil ;  and  iherefuir  tbe  reporter  muit  bate 
mitundcrstovd  the  Courl'a  Jircclion. 


fiS] 


IS  GEORGE  III. 


The  Negro  Case. 


[56 


BuflicieDcy  of  the  declaration.  But  tke  in- 
fluence of  this  case,  on  the  question  of  slavery, 
is  not  by  mere  inference  frona  ibe  Court's  opi- 
nion on  the  plaintiff's  mode  of  declaring  in  his 
action.  The  lanij^uage  of  the  judges,  in  giving 
that  opinion,  is  remarkably  strong  against  the  | 
slavery  of  negroes,  and  every  other  new  sla- 
very attempted  to  be  introduced  into  England. 
Mr.  Justice  Powell  says,  **  In  a  villein  the 
owner  has  a  property ;  the  villein  is  an  inhe- 
ritance ;  but  I  be  law  takes  no  notice  of  a  ne- 
gro." l/ord  Chief  Justice  Holtis'still  mnreex- 
plicit ;  for  he  says,  that "  one  may  be  a  villein  in 
England ;"  but  that  **  as  soon  as  a  negro  comes 
into  England,  he  becomes  free."  The  words  of 
these  two  great  judges  contain  the  whole  of  the 
proposition,  fur  which  I  am  contending.  They 
admit  property  in  the  villein ;  they  deny  pro- 
perty in  the  nesro.  They  assent  to  the  old 
slavery  of  the  villein:  they  disallow  the  new 
slavery  of  the  negro. 

I  beg  leave  to  mention  one  other  case,  chiefly 
for  the  sake  of  introducing  a  strong  expression 
of  the  late  lord  chancellor  Northington.  It  is 
the  case  of  Shanley  and  Hervey,  which  was  de- 
termined in  Chancery  some  time  in  March 
1762.  The  question  was  between  a  negro  and 
his  former  master,  who  claimed  the  benefit  of 
a  *  donatio  mortis  caus^'  made  to  the  negro  by 
a  lady,  on  whom  he  had  attended  as  servant  for 
several  years  by  the  permission  of  his  master.' 
Lord  Northington,  as  1  am  informed  by  a 
friend  who  was  present  at  the  hearing  of  the 
cause,  disallowed  the  master's  claim  with  great 
vrarmth,  and  gave  costs  to  the  negro.  He 
particularly  said,  **  As  soon  as  a  man  puts  toot 
00  English  ground,  he  is  free :  a  negro  may 
maintain  an  action  against  his  master  for  ill 
iisag^e,  and  may  have  a  Habeas  Corpus,  if  re- 
strained of  his  liberty"  (x). 
Objection*  Havitig  obscrvcd  upon  all  the 

m:*de  lo  life  csses,  10  wliicli  thcrc  18  any  thing 
"fn"ih?**.  *^  ^^  found  relative  to  the  present 
sentUHrul'  '  lawfulness  of  slavery  in  England; 
"nTnlindr'  It  is  time  to  consider  the  force  of 
c(atcd«iMiui-    iiie  several  objections,  which  are 

(z)  In  the  above  enumeration  of  cases,  I 
have  omitted  one,  which  nus  sir  Thomas  Gran- 
tham's case  in  the  Common-Pleas,  Hilary  (2  & 
3  Jam.  12.  Being  short,  I  shall  give  it  m  the 
words  of  the  I{e|K)rt.  **  He  bought  a  monster 
in  the  Indies,  which  was  a  man  of  that  coun- 
try, who  had  the  shape  of  a  child  growing  out 
of  his  breast  as  an  excrcKcrncy  all  but  his  head. 
This  man  he  brought  hither,  and  exposed  to 
the  sight  of  the  people  for  profit.  The  Indian 
turns  Christian  and  was  baptized,  and  was  de- 
tained from  his  master,  who  brought  a  Horoine 
Replegiaiido.  The  sheriff  returned,  that  he 
had  replevied  the  body ;  but  doth  not  say  the 
body  in  which  sir  Thomas  claimed  a  property  ; 
whereupon  he  was  ordered  to  amend  his  return, 
aitd  then  the  Court  of  Common-I'leas  bailed 
him."  3  Mod.  130.  It  doth  not  appear,  that 
the'feturn  was  ever  argued,  or  that  the  Court 
gave  any  opinion  oo  tbiacaae ;  and  therefora  AO- 
Uif  **'        *^  ioff  rred  from  it* 


likely  to  be  made,  as  well  to  the  inferencea  I 
have  drawn  from  the  determined  cases,  at  to 
the  general  doctrine  I  huvc  been  urging. 

1.  It  may  be  asked,  why  it  is  that  the  law 
should  permit  the  ancient  slavery  of  the  viHein, 
and  yet  disallow  a  slavery  of  modern  com- 
mencement? 

To  this  I  answer,  that  villenaofe  sprung  up 
ainongst  our  ancestors  in  the  early  and  barba- 
rous state  of  society  ;  that  afterwards  more 
humane  customs  and  wiser  opinions  prevailed, 
and  by  their  influence  rules  were  established 
for  checking  the  progress  of  slavery ;  and  that 
it  was  thought  most  prudent  to  eflect  this  great 
object,  not  instantaneously  by  declaring  every 
slavery  unlawful,  but  gradually  by  excluding 
a  new  race  of  slaves,  and  encouraging  the  vo- 
luntary emancipation  of  the  ajcieot  race.  It 
might  have  seemed  an  arbitrary  exertion  of 
power,  by  a  retrospective  law  to  have  annihi- 
lated pro|)erty,  which,  however  inconvenient, 
was  already  vested  under  the  sanction  of  ex* 
istiug  laws,  by  lawful  means  ;  but  it  was  policy 
without  injustice  to  restrain  future  acquisitions. 

3.  It  may  be  said,  that  as  there  is  nothing 
to  binder  persons  of  free  condition  from  be- 
coming slaves  by  acknowledging  themselves  to 
be  villeins,  theret'ore  a  new  slavery  is  not  con- 
trary to  law. 

1  he  force  of  this  objection  arises  from  a  sup- 
position, that  confession  or  acknowledgment  of 
villenage  is  a  lefpil  mode  of  creating  slavery ; 
but  on  examining  the  nature  of  the  acknow- 
ledgment, it  will  be  evident,  that  the  law  doth 
not  permit  villenage  to  be  acknowledged  for 
any  such  purpose.  The  term  itself  iinporta 
something  widely  different  from  creation  ;  the 
acknowledgment,  or  confession  of  a  thing,  im- 
plying that  the  thing  acknowledged  or  con- 
fessed has  a  previous  existence ;  an<l  in  all 
cases,  criminal  as  well  as  civil,  tht  law  intends, 
that  no  roan  will  confess  an  untruth  to  his  own 
disadvantage,  and  therefore  never  requires 
proof  of  that  which  is  admitted  to  be  true  by 
the  person  interested  to  deny  it.  Besides,  it 
is  not  allowable  to  institute  a  proceeding  for  the 
avowed  aud  direct  purpose  of  ackno\»  ledging 
villenage ;  for  the  law  will  not  allow  the  con- 
fession of  it  to  be  received,  except  where  vil- 
lenage is  alledged  in  an  adverse  way  ;  that  is, 
only  (a)  when  villenage  was  pleade<i  by  the 
lord  against  one  whom  he  claimed  as  his  vil- 
lein ;  or  by  the  villein  against  strangers,  in 
order  to  excuse  himself  from  defending  actions 
to  which  his  lord  only  was  the  pro|>er  party  ; 
or  when  one  villein  was  produced  to  orove  vik 
lenage  against  another  of  the  same  blood  who 
denied  the  slavery.  If  the  acknowledgmi^nt 
had  been  permitted  as  a  creation  of  slavery, 
would  the  law  have  requiretl,  that  the  confes- 
sion should  be  made  in  a  mode  so  indirect  ami 
circuitous  as  a  suit  professedly  commenced  for 
a  different  purpose?  If  confession  is  a  creation 
of  slavery,  it  certainly  oiust  be  deemed  a 
creation  by  consent ;  but  if  confession  had  been 
adopted  as  a  voluntary  creation  of  slavery, 

(a)  Co.  litt.  ISli  b. 


57} 


The  Negro  Cote. 


A.  D.  1771. 


[68 


woold  the  law  have  restrained  the  courts  of 

jostice  from  receiving  confession,  except  iu  an 

adverse  way  ?  If  confession  had  been  allowed 

as  a  mode  of  creating  slavery,  would  the  law 

have  received  the  confession  of  one  person  as 

|Md  evidence  of  slavery  in  another  of  the 

«ae  bkM>d,  merely  because  they  were  descend- 

§i  from  tlie  saiue  common  ancestor  ?  This  last 

orcamalance  is  of  itself  decisive ;  because  it 

iMcssarily  implied,  that  a  slavery  confessed 

vas  a  a&avery  oy  descent. 

On  a  ironsideration  of  these  circumstances 

sttendin^  the  acknowletlgment  of  villenage^  I 

ihaak  it  impossible  to  doubt  its  being  merely  a 

csBfemioD  of  that  antiquity  in  the   slavery, 

which  was  otherwise  necessary  to  be  proved. 

Bat  if  a  doubt  can  be  entertained,  the  opinions 

sf  the  gjreateat  lawyers  may  be  produced  to 

refliove  it,  and  to  shew,  that,  in  consideration 

sf  Uw,  the  person  confessing  was  a  villein  by 

dcseeot  and  m  blood.     In  the  year-book  of  43 

£.  3,  (6),  it  is  laid  down  as  a  general  rule, 

**  that  when  one  claims  any  mau  as  his  villein, 

it  riiall  be  intended  always  thai  he  is  his  vil- 

ku  by  reason  of  stock.*'    Lord  chief  justice 

Hobart  considers  villenage  by  confession   in 

this  way,  and  says  (c),  **  the  confession  iu  the 

court  of  record  is  not  so  much  a  creation,  as.it 

if  in  supposal  of  law  a  declaration  of  rightful 

liUenage    before,    as  a 'confession   in   other 

ictiuos."      Mr.    Serjeant    Rolle   too,    in   his 

skitigmeot,  when  he  is  writing  on  villenage 

bj  acknowledgment,  uses  very  stron*;  words  to 

the  same  effect.     He  says  in  one  idace  (d)^  **  it 

lemH  int«!nded  that  title  is  made  that  he  should 

be  a  villeio   by  descent,"  and  in  another  place 

(c),  **  it  seems  intended  that  title  is  made  hy 

inscription,  wherefore  the  issue  shoultl  also 

bii'iiifiiis."     The  only  instance  I  can  find,  of 

a  .N<iivo   Habenilo  founded  on  a  previous  ac- 

Jcsb'siedgmeot  of  viilenaffe,  is  a  stronj|r  atitho- 

\ii\  tfi  the  same  purpose.  In  the  19lh  of  Ed  ward 

2,  \J')  the  dean  and  chapter  of  London  brought 

iwrit  ofNetfty  to  recover  a  viilein,  and  con- 

d«ied  their  declaration    with  mentioning  his 

aekaowledgment  of  the  villenage  on  a  former 

Qccasioo,  instead   of  producing  their  suit,  or 

anaesses,  as  was  necessary  when  the  villenage 

bad  not  been  confessed  :  but  notwithstanding 

ibe  acknowledgment,  the  plaintiffs  ailedgeda 

seizin  of  the  villein  with  eaplees,  or  receipt  of 

profits  from  him,  in  the  usual  manner.    This 

case  is  another  proof,  that  a  sei/in  previous  to 

tiie  acknowledgment  was  the  real  foundation 

At  ibe  lurd*s  claim,  and  that  the  acknowledge 

neat  was  merely  used  to  estop  the  villein  from 

CAQtesting  a  fact  which  had  been  before  so- 

kmoly  confessed.     However,  1  do  admit,  that 

sader  the  form  of  acknowledgment  there  was 

a  possibility   of   coUusively  creating  slavery. 

but  tliis  was  not  practicable  without  the  con- 

csrrence  of  the  person  himself  who  was  to  be 


(t)  43  E.  3.  4- 


(c)  Hob.  99. 
Ro.  Abr.  73S.  pi.  6. 
(€j  lb.  pi.   8. 
;  Fits.  Abr.  Villeiiage,  34. 

9 


the  sufferer  by  the  fraud  ;  and  it  was  not  pro- 
bable, that  many  persons  should  be  found  so 
base  in  mind,  so  false  to  themselves,  as  to  sell 
themselves  and  their  p(niterily,  and  to  renounca 
the  common  protection  and  benefit  of  the  law 
for  a  bare  maintenance,  which,  by  .the  wise 
provision  of  the  law  in  this  country,  may  al- 
ways be  had  hy  the  most  needy  and  ilis»tressed» 
on  terms  infinitely  less  ign(d)le  and  s«*Yere.  It 
should  also  be  remembered,  that  such  a  collu- 
sion could  scarcely  be  wholly  prevented,  so 
long  as  any  of  the  real  and  unmanumilied  de- 
scendants from  the  antient  villeins  remained  ; 
because  there  would  have  been  the  same  possi- 
bility of  defrauding  the  law  on  the  actual  trial 
of  villenage,  as  by  a  previous  acknonledgmeot. 
Besides,  if  collustons  of  this  sort  had  ever  be* 
come  frequent,  the  lej^ialature  mi^ht  have  pre- 
vented their  effect  hy  an  extraordinary  reme- 
dy. It  seems,  that  antiently  such  frauds  were 
sometimes  practised  ;  and  that  free  persons,  in 
order  to  evade  the  trial  of  actions  brought 
against  them,  alleilged  that  they  were  villeins 
to  a  stranger  to  the  suit,  which,  on  ac<'ount  of 
the  great  improbability  that  a  confesvion  so  dis- 
advantageous should  be  void  of  tiuth,  was  a 
plea  the  common  law  did  not  suffer  the  plain- 
tiff to  deny.  BOt  a  remedy  was  soon  applied, 
and  the  statute  of  (g)  37  E.  3,  was  made,  gi%  ing 
to  the  plaintiff  a  liberty  of  contesting  such  ao 
allegation  of  villenage.  if  in  these  times  it 
should  be  eiideavoure<l  to  revive  domeslio 
slavery  in  Eugland,  by  a  like  fraudulent  con- 
fession of  «il!enat;e,  surely  so  unworthy  an  at- 
tempt, so  (rross  an  evnl^ion  of  the  law,  \tould 
excite  in  this  court  the  sti<ii!gest  diNapptobutioa 
and  resentment,  and  fiom  parliament  would  re- 
ceive an  immediate  and  t- ffectual  reutedy ;  I 
mean,  a  law  declaring  that  villenage,  as  is 
most  notoriously  the  fact,  has  been  long  expired 
for  want  of  real  ohjects,  and  therefore  making 
void  all  precedent  confessions  of  it,  and  prohi- 
biting the  courts  of  justice  from  recording  a 
confeK^ion  of  villenao^e  in  future. 

3.  It  may  be  objected,  that  though  it  is  not 
usual  in  the  wars  between  Christian  powers  to 
enslave  prisoners,  yet  that  souie  nations,  parti- 
cularly the  several  stales  on  the  coast  of  Bar- 
bary,  still  adhere  to  that  inhuman  practice  ; 
and  that  in  case  of  our  ^eing  at  war  with 
them,  the  law  of  nations  would  juMtify  our 
king  in  retaliating;  and  consequently,  that 
the  law  of  England  has  not  excluded  the  possi- 
bility of  iittroUucini^  a  new  slavery,  as  the  ar- 
guments against  it  sup|»08e. 

But  this  objecti<in  may  be  easily  answered  ; 
for  if  the  arguments  auainst  a  new  slavery  in 
En(>land  are  well  ftumded,  (hey  reach  the 
kin^r  as  well  as  his  subjects.  If  it  has  been  at 
all  times  the  policy  of  the  law  of  Enj^laod  not 
to  recognize  any  slavery  hut  the  antir nt  one  of 
the  viilein,  which  is  now  expired ;  we  cannot 
consistently  attribute  to  the  executive  power  a 
prerotrative  of  rendering  that  policy  ineffec- 
tual.    It  in  true,  that  the  law  of  nations  may 


ttf 


(g)  37  E.  3|  C.  1§. 


09]  18  GEORGE  HL 

give  a  right  of  retnliating  on  an  eoeroy,  who 
cnskres  his  captirea  in  war;  but  then  the 
exercise  of  this  riicrht  niay  be  prereoted  or  li- 
mited by  the  law  of  any  particniar  country.  A 
writer  of  eminence  (A)  on  the  law  of  nations, 
has  a  passage  very  applicable  to  this  subject. 
His  words  are,  "If  the  ciftl  law  of  anv  na- 
tion  does  not  allow  of  slavery,  prisoners  of  war 
who  are  taken  by  that  nation  cannot  be  nimde 
ffaves."  He  is  justified  in  his  obserration  not 
only  by  the  reason  of  the  thing,  but  by  the 
practice  of  some  nations,  where  slavery  is  as 
unlawful  as  it  is  in  England.  The  Dutch  (i) 
when  at  war  with  the  Algerines,  Tunisians,  or 
Tripolitans,  make  no  scruple  of  retaliating  on 
their  enemies ;  but  slavery  not  being  lawful  in 
their  European  dominions,  they  have  usually 
■old  their  prisoners  of  war  as  slaves  in  Spain, 
where  slavery  is  still  permitted.  To  this  ex- 
ample I  have  only  to  add,  that  I  do  not  know 
an  instance,  in  which  a  prerogative  of  having 
<saptive  slaves  in  England  has  ever  been  as- 
sumed by  the  crown;  and  it  being  also  the 
policy  of  our  law  not  to  admit  a  new  slavery, 
there  appears  neither  reason  nor  fact  to  sup- 
pose the  existence  of  a  royal  prerogative  to  in- 
troduce it. 

'  4.  Another  objection  will  be,  that  there  ai« 
Engli^  acts  of  parliament,  which  give  a  sanc- 
tion to  the  slavery  of  negroes ;  and  therefore 
that  it  is  now  lawful,  whatever  it  might  be  an* 
tece<lently  to  those  statutes. 

The  statutes  in  favour  of  this  objection  are 
the  5  Geo.  9,  c.  7,  (k)  which  makes  negroes  in 
America  liable  to  all  debts,  simple-contract  as 
well  as  speciality,  and  the  statutes  regelating 
the  African  trade,  particularly  the  SS  Geo.  9, 
c.  31,  which  io  the  preamble  recites,  that  the 
trade  to  Africa  is  advantageous  to  Great  Bri- 
tain, and  necessary  for  supplying  its  colonies 
with  negroes.  But  the  utmost  which  can  be 
said  of  these  statutes  is,  that  tliey  impliedly 
authorize  the  slavery  of  negroes  in  America ; 
and  it  would  be  a  strange  thing  to  say,  that 
permitting  slavery  there,  includes  a  permission 
of  slavery  here.  By  an  unhappy  concurrence 
•f  circumstances,  the  slavery  of  negroes  is 
thought  to  have  become  necessary  in  America ; 
and  therefore  in  America  our  legislature  has 
permitted  the  slavery  of  negroes.  But  the 
slavery  of  negroes  is  unnecessary  in  England, 

(h)  Rutherf.  Inst.  Nat.  L.  v.  8,  p.  576. 

(i)  *  Quia  ipsa  servitus  inter  Cbristianos 
'  fere  exolevit,  eft  quoque  non  utimur  in  hostes 
'  eaptos.    Possumus  tamen,  si  ita  placeat ;  imo 

*  ntimur  quandoque  adversus  eos,  qui  in  nos 

*  utuntur.    Qnare  et  Bel(jpae  quos  Algerienses, 

*  Tunitanos,  Tripolenses,  in  Oceano  aut  Mari 

*  Mediterraneo  capiunt,  solent  in  servitutem 
<  Hispanis  vendere,  nam  ipsi  Be\^te  servos  non 

*  liabent,  nisi  in  Asi&  Africft  et  Americft.  Quin 
■  anno  1661,  Ordines  Generales  Admiralio  suo 
'  naodlUvnt,  pirates  eaptos  in  servitntem  ven- 

*  dsrat  IdmoQue  ofaservatom  est  anno  1664.' 
Byaksrsbock  QosBst  Jnr.  PnbL  lib.  1|  c.  9. 


The  N^o  Case. 


[60 


and  therefore  the  legislature  has  not  extended 
the  permission  of  it  to  England ;  and  not  hav- 
ing done  so,  how  can  this  court  be  warranted 
to  make  such  an  extension  f 

&.  Ihie  slavery  of  negroes  being  admitted  to 
be  lawful  now  in  America,  however  questions-* 
hie  its  first  introduction  there  might  be,  it  msy 
be  urged,  that  the  lex  ioci  ought  to  prevail,  and 
that  the  master's  property  in  the  negro  as  a 
slave,  having  had  a  lawful  commencement  in 
America,  cannot  be  justly  vsri^  by  bringing 
him  into  England. 

1  shall  answer  this  objection  br  explaining 
the  limitatran,  under  which  the  lex  loci  ought 
always  to  be  received.  It  is  a  general  rule  {/), 
that  the  lex  loci  shall  not  prevail,  if  great  in- 
conveniences will  en&ne  from  giving  eflect  to 
it.  Now  I  apprehend,  that  no  instance  can  be 
mentioned,  in  which  an  application  of  the  lex 
loci  would  be  mora  inconvenient,  than  in  the 
case  of  slavery.  It  must  be  W^^d*  that 
where  the  lex  loci  cannot  have  effect  without 
introducing  the  thing  prohibited  in  a  degree 
either  as  great,  or  nearly  as  great,  as  if  there 
was  no  prohibition,  there  the  greatest  inconve- 
nience would  ensue  from  regarding  the  le$r 
loci^  and  consequently  it  ought  not  to  prevail. 
Indeed,  by  receiving  it  under  such  circum- 
stances, the  end  of  a  prohibition  would  be  fims- 
trated,  either  entirely  or  in  a  very  great  de- 
gree ;  and  so  the  prohibition  of  things  tha 
most  pernicious  in  their  tendency  would  he- 
come  vain  and  fruitless.  And  what  greater  in- 
conveniences can  we  imagine,  than  those, 
which  would  necessarily  result  from  such  an 
unlimited  sacrifice  of  the  municipal  law  to  the 
law  of  a  foreign  country  ?  1  will  now  apply 
thia  general  doctrine  to  the  particular  case  of 
our  own  law  oonceraing  slavery.  Our  Uw  pro- 
hibita  the  commencement  of  domestic  slavery 
in  England ;  because  it  disapproves  of  slavery, 
and  considers  its  operation  as  dangerous  and 
destructive  to  the  whole  commnntiy.  But 
would  not  this  prohibition  be  whollv  ineffec- 
tual, if  slavery  could  be  introduced  from  a  fo- 
reign country  ?  In  the  course  of  time,  thoucrh 
perhaps  in  a  progress  less  rapid,  would  not  do- 
mestic slavery  become  as  general,  and  be  as 
completely  revived  in  England  by  introduction 
from  our  colonies  and  from  foreign  countries, 
as  if  it  wss  permitted  to  revive  by  commence- 
ment here ;  and  would  not  the  same  inconve- 
niences follow  ?  To  prevent  the  revival  of  do- 
mestic slavery  effectually,  iu  iatroduction  must 
be  resisted  universally,  without  regard  to  the 
place  of  its  commencement ;  and  therefore  in 
the  instance  of  slavery,  the  lex  loci  must  \ield 
to  the  municipal  law.  From  the  fact  of  there 
never  yet  having  been  any  slavery  in  this 
country  except  the  old  and  now  expired  one 
of  viilenage,  it  is  evident,  that  hitherto  our  law 
has  uniformly  control leil  the  lex  loci  in  this  re- 
spect ;  and  so.  long  as  the  same  policy  of  ex- 

(l)  See  the  chapter  *  de  conflictu  legum  di- 
*  versarum  in  divenis  inperiisi*  ia  Huber.  Vn^ 
lect,  p.  §38* 


The  Negro  Caie. 


e  case  of 
liberty  lo 


din^  ibe  lex  loci  in  ll 
■M,  iigiiea  imtneilialesnd  ciilJri 
■i,  ■iien  itiey  are  tirougbt  here 
orcuiDtrv.  Atoat  of  (lie  iither  European 
an.  io  which  slarcrj  ii  discauDleoaiiced, 
Maiopwd  a  lihe  policy. 
Ii  SoMland  domMlic  ilavery  is  (m)  un- 
to^o.  eierpl  CA  far  as  regards  the  (n)  coal- 
k*ni  aoi]  sall-maken,  wbose  condUian,  il 
B*  be  coorrMed,  bears  some  resemMance  lo 
*|07  :  because  atl  wliu  bave  unce  acted  in 
MRof  ibifse  capaciiies  are  compellable  to 
mt,  and  fixed  to  ilieir  respective  places  of 
mbimcDl  durioe  lite.  Bui  wilb  this  single 
onyiiaa,  there  is  not  llie  least  vestige  ut 
Aktj  i  aod  «o  jealous  is  the  Scotch  law  of 
Bin  t^ta(  li:Dding  to  slavery,  that  it  bu  been 
U  to  disalUnr  coulracts  of  seriice  for  life,  or 
*rt  ttrj  lon^  term  ;  as,  for  Bimy  years  (o). 
Boner,  nn  parlicular  case  bas  yet  happened, 
■  ■hicb  it  bfta  beeu  necessary  to  decide,  wbe- 
M  a  *l(«e  of  another  country  acquires  free- 
aaaabis  arriral  in  Scolland.  In  1757  Ibis 
fHH«  wms  depending  in  tbe  Court  of  SessioD 
itciBse  of  a  oei^ro ;  but  tbe  negro  happen- 
•%  la  die  during  ibe  pendency  of  the  cause, 
*■  fiMiou  was  not  (*)  delemiined.  But 
•M  a  >■  conaidered,  that  in  the  time  nf  sir 
ttaBBiCtaig,  who  nroleat  least  ISO  years 
if^diter*  was  eten  then  a  thing  unheard  of 
•  toMlaBd,  and  thai  there  sre  no  laws  (p  )t( 
^mt  ilavery,  one  can  scarce  doubt  nbai 
^an  tbe  lords  uf  aession  would  have  prO' 
•^■4,  if  Ibe  negro's  death  bad  not  pre- 
mt  a  d^ision. 
ake  Cnited  ProviDcesslaTerybaTiag fallen 


['■J  Sec  Crag.  Jus  Feud.  lib.  ; 
tJL    Suit'*  Instil,  b.  1,  I.  e,  E. 

(n)  Puib.  Insl.  jurl  1,  b.  2,  t. : 
haa-ial.  I,  p.  66, 

(t)  Uaedooal.  Instit.  toI.  1,1 
■M  ita  1 1 1  r .  that  in  tbe  case  reli 
IhBiwial.  the  lerm  of  service  wa 
i  eireumstince.     Tbe  con 


,  dieges.  1 1 , 

.  Mucdoual. 

68.      But  I 
by  Mr. 


11  the 


bo*  ikc  uasters  and  the  crews  of  some  iish 
'  hani  Uie  latter  biadjag  themselves  for  a 
ynriy  »Upw*Dce  lo  serre  in  their  respeclite 
MM  dariflf!  Ibree  limes  nineteen  yean,  so  Ibal 
HIaov  af  dtem,  duriug  all  that  time,  could  re- 
aaae  traoi  a  particular  tillage,  or  ao  much  aa 
ft««  MC  boat  to  arnaber.  See  Diet.  Decii, 
tL  Pactum  illicitum. 

CJ  Wall.  Instil.  Law  of  Scotl.  chap,  on 
WK^r  aari  aerTant 

(f)  ikr  Tbamaa  Craig,  toantinning  the  Eng- 
U  (rikaafe,  aaj s,  ■  N'lillua  eiil  apud  uos  eju 
'tmm,rt  inaadiium  nomen,  nisi  quod  iionnull 
'■bbru  HrgiE  UajesUlii  de  nnlitisetad  li 
'hnuem  ^nwlamanlibut  prop  una  iitu  r  ;  qut 
'aib  A«c'""""  iu'>ribiia«iint  recepla,  et  nun 
'w^  M  uauin  nostrum  deducta.'  Crag.  Ju 
r    Jl^l 


A.  D.  1771.  [B2 

into  diiuie  (j),  all  their  wrilen  agree,  that 
s  from  another  country  become  Iree  ib» 
lent  they  euler  into  the  Duti;h  terriioriea 
(r).  The  same  custom  prevails  in  some  of  Iha 
neighbouring  countries,  particularly  Brabant, 
Had  olher  parts  of  tbe  Aualrian  Netherlands; 
and  Gudelinu),  an  eminent  civilian,  who  was 
formerly  proreiwor  of  law  at  Lourain  in  Bra- 
bant, relatea  from  tbe  annals  uf  the  supreme 
council  at  Mechlin,  IhnI,  in  tbe  year  1531,  an 
applicatiou  for  apprehending  and  surrendering 
a  tngitive  slave  from  Spain  was  on  tbia  account 
rejected  (j). 

Jn  France  tbe  law  is  parlicularly  explicit 
against  regarding  ihe  Itx  foci  in  tbe  case  of  do- 
mestic slavery  :  and  though,  in  some  of  tba 
provinces,  a  reronanl  of  tbe  antient  slavery  U 
still  to  be  seen  in  Ihe  persons  of  the  '  serfs'  or 
'  gens  de  mnio-inorte,'  who  are  attached  lo 
panicular  lanJi  ((),  as  villeins  reLfardaut  for- 
merly were  ia  England  ;  yet  all  the  writers  on 
Ibe  law  of  France  agree,  that  tbe  moment  a 
slave  arrives  ibere  from  analber  country  h« 
acquires  liberty,  not  in  consequence  of  any 
wrilteo  law,  tiul  merely  by  long  usage  having 
the  ti}rce  of  law.  There  are  many  remarkable 
inatances  in  which  Ibis  rule  against  the  aitmis- 
sion  of  slaves  from  foreign  couniries  has  bad 
effect  in  France.  Two  are  mentioned  by  (n) 
Bodin;  one  being  Ibe  case  of  a  foreign  mer- 
chant who  had  purcliaaed  a  slave  in  Spain,  and 
alierwards  carried  him  into  France  ;  tbe  olher 
being  tbe  case  of  a  Spanish  ambassador,  whose 
slave  was  declared  tree,  notwitbstanding  the 
high  and  independent  character  of  the  sTave's 
owner.  This  latter  case  has  been  objected  lo 
by  Borne  writers  (w)  on  Ibe  law  of  nationg,  who 
do  not  disapjirove  of  the  general  principle  nn 


Cf  )  ■  BelgiG  servos  non  babeol,  nisi  in  Asit, 
'  Africft,  et  AmericL'  Byokersh.  QokbI.  Jur, 
Pub,  bb.  I,  c.  3.  Another  great  Dutch  lawyer 
adds,   ■  Nee  cuiquam  mortalium  nunc  liceel 

■  use  venundare,  aut  ali&  ratiune  servilDlis  jure 

■  semel  alleri  addicere.'     Voet  Commentar.  ad 
Pandect,  lib.  1,  lil.  5,  s.  3. 

(r)  '  Servilua  naulatim  ab  usu  recesiil,  ejua- 
'  que  Domeo  bodie  apud  nos  exolevit;  adco 
'  quidem  ut  scrvi,  qui  aliunde  hue  adducunlur, 
'  simul  ac  imperii  noslri  fines  intrftrunt,  invilia 
'  ipsorum  dominia  ad  hberlatcm  proclamars 
'  pussini ;  id  qnod  et  aliaruTD  ChriEiiBn&ruia 
'  gentium  moribusreceplum  esl.'  Grieuewcgeu 
de  Leg.  Abrogat.  in  Hollandili,  &c.  p,  S,  John 
Voel,  in  the  place  cited  in  ihe  preceding  note, 
expresses  himself  to  the  same  effect. 

(t)  Gudelin.  de  Jur.  Noviss.  lib.  1,  c.  5,  et 
ViDn.iiilnslit.lib.  1,  til.  3,  p.39,edit.  Heinecc. 

(I)  See  Inst,  au  droit  Franc.  parM.  Argou, 
ed.  1763,  liv,  l,  chap.  1,  p.  4. 

(u)  Bodin.  de  llepubhc.  lib.  1,  cap.  S,  d« 
iniperio  herili.  Se«  several  other  inslancea 
(Tienliuned  in  the  Nfgru  cause  in  Ihe  13tb  vo- 
lume of  the  Causes  Celehres. 

(a)  K.irchner,  de  Lt^al.  lib,  3,  c.  1,  nom. 
333;  and  afier  him  Bynkprshoek  Juge  Com- 
pel, dvs  Ambatnd.  Cil.  ^ut  Qatbejt.c.  l&,t.V 


63J  12  GEORGE  IIL 

which  liberty  is  giren  to  stares  brought  from 
foreig^D  countries,  but  only  coroplaio  of  lis  ap- 
plication to  the  particular  case  of  an  ambassa- 
dor. But,  00  the  other  hand,  Wicquefort  (x) 
blames  the  states  of  Holland  for  not  followindf 
the  example  of  the  French,  in  a  case  which 
he  mentions.  AHer  the  establishment  of  the 
Frenci)  colonies  in  South  America,  the  kinfips 
of  France  thought  fit  to  deviate  from  the  strict^ 
ness  of  the  antient  French  law,  in  respect  to 
■larery,  and  in  them  to  permit  and  regulate  the 
possessiou  of  negro  slaves.  The  first  edict  for 
this  purpose  is  said  to  have  been  one  in  April 
1615,  and  another  was  made  in  May  1685  (^), 
which  is  not  confined  to  negroes,  hut  regulates 
the  general  police  of  the  French  islands  in 
America,  and  is  known  by  the  name  of  the 
Code  Noir.  But  notwithstanding  these  edicts, 
if  DPgro  slaves  were  carried  from  the  French 
American  islands  into  France,  they  were  inti- 
tled  to  the  benefit  of  the  ancient  French  law, 
and  became  free  on  their  arrival  in  France  (x). 
To  prevent  this  consequence,  a  third  etiict  was 
ma(le  in  October  1716,  which  permits  the 
bringing  of  negro  slaves  into  France  from  their 
Americau  islands.  The  permission  is  granted 
under  various  restrictions ;  all  tending  to  pre- 
Tent  the  long  continuance  of  negroes  in  France, 
to  restrain  their  owners  from  treatin^^  theni  as 
property  whilst  they  continue  in  their  mother 
country,  and  to  prevent  the  importation  of  fu- 
gitive negroes ;  and  with  a  like  view,  a  royal 
declaration  was  made  in  December  1738  (a), 
containing  an  exposition  of  the  edict  of  1716, 
and  some  additional  provisions.  But  th«  an- 
tient law  of  France  in  favour  of  slaves  from 
another  country,  still  has  efl'ect,  if  the  terms  of 
the  edict  of  1716,  and  of  the  declaration  of 
1738  are  not  strictly  complied  with  ;  or  if  the 
negro  is  brought  from  a  place,  to  which  they 
do  not  extend.  This  appears  from  two  cases 
adjudged  since  the  edict  of  1716.  In  one  (A) 
of  them,  which  happened  in  1738,  a  negro  had 
been  brought  from  the  island  of  St.  Dumio^o 
without  oliserving  the  terms  of  the  edict  of 
1716  ;  and  in  the  other  (r),  which  was  decided 
to  late  as  in  the  year  1758,  a  slave  had  been 
brought  from  the  Kast  Indies,  to  which  the 

(x)  Wicq.  Embassador,  Engl.  ed.  p.  268. 

(y)  Decisions  Nouvelles,  par  M.  Denisart,  j 
tit.  Ne^res. — Denisart  mentions,  that  the  edict 
of  1685  is  registered  with  the  sovereign  council 
at  Domingo,  but  has  never  been  registered  in 
any  of  the  French  parliaments. 
^  O)  Nouvelles  Decisions  par  M.  Denisart, 
tit.  Negres,  s.  yr. 

(a)  M.  Denisart  oWrves,  that  (he  edict  of 
1716,  and  the  declaration  of  1738,  do  uot  ap- 
pear to  hare  been  ever  registered  by  the  parlia- 
**'J«nt  of  Paris,  beciiuse  they  are  considered  as 
^^^^ryto  the  common  law  of  the  kingdom.^ 
hw  Nouvelles  Decisions,  Ut.  Ncgrtss.    And 

>  <  ^  ^'•usca  Celebres,  vol.  13,  p.  492. 
\^  Nouvellei  Decisioot  par  M.  DemMrt, 
It.  Neffrca^  a,  147. 


The  Negro  Case.  ([64 

edict  doth  not  extend  :  and  tn  both  tljeie  cases 
the  slaves  were  declared  to  be  free. 

Such  are  the  examples  tlrawii  from  the  laws 
and  usages  of  other  Eur(»|»ean  countries ;  and 
they  fully  evince,  that  wherever  it  is  the  policy 
to  discountenance  slavery,  a  disregard  of  the 
lex  loci,  in  the  case  of  slavery,  is  as  well  justi- 
fied by  general  practice,  as  it  is  really  founded 
on  necessity.  Nor  is  the  justice  of  such  pro- 
ceeding less  evident ;  for  how  can  it  be  unjust 
to  devest  the  master's  property  in  his  slave, 
when  he  is  carried  into  a  country,  in  which^ 
for  the  wisest  and  moat  humane  reasons,  such 
property  is  known  to  be  prohibited,  and  conse- 
quently cannot  be  lawfully  introduced  P 

6.  It  may  be  contended,  that  though  the  law 
of  England  will  not  receive  the  negro  as  a 
slave,  yet  it  may  suspend  the  severe  qualities  of 
the  slavery  whilst  the  negro  is  in  £o(^land,  and 

f»reserve  the  master's  right  over  him  m  the  re- 
ation  of  a  servant,  either  by  presuming  a  con- 
tract for  that  purpose,  or,  without  the  aid  of 
such  a  refinement,  by  compulsion  of  law 
grounded  on  the  condition  of  slavery  in  which 
the  negro  was  .previous  tn  his  arrival  here. 

But  in8U|)erable  difficulties  occur  against 
modifying  and  qualifying  ihc  slavery  by  this 
artificial  refinement.  In  titc  pr^-sent  case,  at 
all  events,  such  a  mo<lific:itiuu  cannot  be  allow- 
able ;  because,  in  the  return,  the  master  claims 
the  benefit  of  the  rel.ition  between  him  and  the 
negro  in  the  full  extenf  of  the  original  slavery. 
But  for  the  sake  of  shewing  the  futility  of 
the  argument  of  modification,  and  in  order 
to  prevent  a  future  attempt  by  the  masters  of 
negroes  to  avail  themselves  of  it,  1  i^ill  try  its 
force. 

As  to  the  presuming  a  contract  of  service 
against  the  negro,  i  ask  at  what  time  is  its 
commencement  to  be  supposeil?  Jf  the  time 
was  before  the  negro's  arrival  in  Ktij^land,  it 
was  made  when  he  was  in  a  staie  of  slavery, 
and  consequently  without  the  po\ier  of  con- 
tracting. If  the  time  presumed  was  subse- 
quent, the  presumption  must  begin  tiie  moment 
of  the  negro's  arrival  here,  and  consHpiently 
be  founded  on  the  mere  fart  of  that  arrival,  and 
the  consequential  enfrnnchisement  by  opera- 
tion of  law.  But  is  uot  a  slavery,  determined 
against  the  consent  of  the  master,  a  strange 
foundation  for  presuming  a  contract  l»etween 
him  and  the  slave  ?  For  a  momeut,  however,  I 
will  allow  the  reasonableness  of  pref:uming 
such  a  contraH,  or  I  will  suppose  it  to  l>e  re- 
duced into  writing ;  but  then  I  ask,  what  are 
the  terms  of  this  contrartP  To  answer  the 
master's  pur|iose,  it  must  be  a  contract  to  serve 
the  master  here;  and  when  he  leaves  this 
country  to  return  with  him  into  America, 
where  the  slavery  will  again  attach  oiion  the 
negro.  In  plain  terms,  it' is  a  contract  to  go 
into  slavery  whenever  the  master's  occasions 
shall  require.  Will  the  law  of  £n<;land  dis- 
allow  the  introduction  of  slavery,  and  therefore 
emancipate  the  negro  from  it ;  and  yet  give 
effect  to  a  contract  founded  solely  upon  sla- 
Tcry ,  ID  slavery  endiog  ?  Is  it  possible,  that  the 


«J 


The  Negro  Case. 


I :  h.«  aa 
»  t-r»ir.n 

ri'-Jtt  6.? 
•Vlatte 


hw  of  BagUiid  can  be  «o  iiwulting  to  the 
Mfpro,  te  iDOOiitisteiit  wil  h  ittel  F  P     • 

The  ■rgoineot  of  modification,  iodependeot- 
Ij  vf  euotraet,  is  eqatlly  delusive. — Tliere  is 
Bsbown  rale  by  which  the  Court  can  g^uide 
'  "  ID  a  partial  reception  of  sla?ery.  Be* 
if  the  law  of  Eogfland  would  receive  the 
of  the  negro  io  any  way,  there  can  be 
wby  it  should  not  be  admitted  in  the 
MM  degree  as  the  slavery  of  the  villein ;  but 
fkt  aifgiinieiit  of  modification  necessarily  stip- 
fH«  the  ooDtrafy  ;  Iteeause,  if  the  slavery  of 
ike  aegfo  was  received  in  the  same  extent, 
Iba  it  would  not  be  necessary  to  have  recourse 
Ha  ^oalification.  There  is  also  one  other  ma- 
am  still  more  repugnant  to  the  idea  of  modify- 
isf  the  staverv.  If  the  law  of  England  would 
■Miry  the  slavery,  it  would  certainly  take 
•way  its  most  exceptionable  qualities,  and  leave 
these  which  are  least  oppressive.  But  the  mo- 
dUkption  required  will  be  insufficient  for  the 
'a  parpose,  unless  the  law  leaves  behind 
the  most  exceptionable,  odious  and 
SMffcnive;  an  arbitrary  power  of  revivinu: 
the  slaverj  in  its  full  extent,  by  renraval  of 
*e  oegro  to  a  place,  in  which  the  slavery 
•in  again  attach  upon  him  with  all  its  original 
K*my(iA. 

FroiB  this  examination  of  the  several  ob- 

JKtisiis  in  favour  of  slavery  in  England,  I 

lUak  myself  well  warranted  to  observe,  that 

iwcad   of   being  weakened,   the  arguments 

apiast  slavery  in  England  have  derive  an  ad* 

4tMaal  force.      The  result  is,  not  merely  that 

Mirers  become  free  on  being  brought  into  this 

caoBtry,  Imt  that  the  law  of  England  confprs 

^  %A  of  liberty  entire  and  unincumbered ; 

Mttt  lame  only,  but  really  and  substantislly ; 

■W  cMMqoentfy  that  Mr.  Stenart  cannot  have 

tW  Irvi  rii^ht  over  Sommersett  the  ue<rro, 

^fhtf  io  the  open  character  of  a  slave,  or  in 

l^dngvised  one  of  an  ordinary  servant. 

(9.)    In  the  outset  of  the  argu 
ment   I    made  a  second   question  '] 
on  Mr.  Htetiart's  authority  to  en - 
f«iree  his  right,  if  he  has  any,  by 
transporting  the  negro  out  of  Eng-  j 
land.  Few  words  will  be  necetfsary 
on  this  point,  which  my  duty  as 

(d)  This  answer  to  the  argument  of  modi- 
lestioa,  inchides  an  answer  to  the  supposition, 
4tf  an  action  of  trespass  *  per  quod  servitium 
*  misit,*  will  lie  for  loss  of  a  negro's  service. 
I  IB  petvonded,  that  the  case,  in  which  that 
rtiMdy  was  loosely  suggested,  was  one  in 
vbiefa'  the  question  was  about  a  negro  being 
•ui  of  Enifland.  I  mean  tlie  case  of  Smith  and 
Gbald,  S  Halk.  667.  Another  writ,  hinted  at 
h  ibc  tame  case,  is  the  writ  of  trespass,  <  qiiarc 
'apiivum  snum  cepit;'  which  is  not  in  the 
bsrt  applicaHe  to  the  negro,  or  any  other  slave. 
hiappoaes  the  plaintiff  to  have  had  one  of  the 
kii^'fceneiAies  m  his  custody  as  a  prisoner  of 
«ir,  and  to  have  had  a  right  of  detaining  him 
fl  ^yment  of  a  ransom.  Sea  Reg.  Br.  103, 
k.  sad  f  Mk  007. 

VUU  IX.  I 


A,  D.  1771.  [B« 

counsel  for  the  negro  requires  me  to  make,  in 
order  to  g^ve  him  every  possible  chance  of  a 
discharge  from  his  confinement,  and  not  from 
any  doubt  of  success  on  the  question  of  slavery. 

If  in  England  the  negro  continues  a  slave  to 
Mr.  Steuart,  he  must  be  content  to  have  the 
negro  subject  to  those  limitations  which  the 
laws  of  villenage  im|Y06ed  on  the  lord  in  the 
enjoyment  of  his  property  in  the  villein ;  there 
being  no  other  laws  to  regulate  slavery  in  this 
country.  But  even  those  laws  did  not  permit 
that  high  act  of  dominion  which  Mr.  oteuart 
has  exercised;  for  they  restrained  the  lord 
from  forcing  the  villein  out  of  England.  The 
law,  by  which  the  lord's  power  over  his  villein 
was  thus  limited,  has  reached  the  present 
times.  It  is  a  law  (e)  made  in  the  time  of  the 
first  William,  and  the  words  of  it  are,  *  prohi- 
*  bemus  ut  nullus  vendat  hominem  extra  pn- 
<  triam'  (/). 

If  Mr.  Stenart  had  claimed  the  negro  aa  n 
servant  by  contract,  and  in  his  return  to  the 
Habeas  Corpus  had  stated  a  written  agreement 
to  leave  England  as  Mr.  Steuart  should  re^- 
quire,  signed  by  the  negro,  and  made  after  hia 
arrival  in  England,  when  he  had  a  capacity  of 
contracting,  it  miglit  then  have  been  a  ques- 
tion, whether  such  a  contract  in  writing  would 
have  warranted  Mr.  Steuart  in  compelling  the 
performance  of  it,  by  forcibly  transporting  the 
negro  out  of  this  country  P  1  am  myself  satis* 
fied,  that  no  contract,  however  solemnly  enter- 
ed into,  would  have  justified  such  violence. 
It  is  contrary  to  the  genius  of  the  English 
law,  to  allow  any  enforcement  of  agreementli 
or  contracts,  by  any  other  compulsion,  than 
that  from  our  courts  of  justice.  The  exercise 
of  such  a  power  s  not  lawful  in  cases  of 
agreemeirts  for  property ;  much  less  ought  it  to 
be  so  for  enforcing  atj^reements  against  the 
person.  Besiiles,  is  it  reasonable  to  suppose, 
that  the  law  of  England  would  permit  that 
against  the  servant  by  contract,  which  is  de* 
nied  against  the  slave?  Nor  are  great  autho- 
rities wanting  to  acqtiit  the  law  of  England  of 
such  an  inconsistency,  and  to  shew,  that  a 
contract  will  not  warrant  a  compulsion  by  im- 
prisonment, and  consequently  much  less  by 
transporting  the  party  out  of  this  kingdom. 
Lord  Hobart,  whose  extraordinary  learning, 
judgment,  and  abilities,  have  always  ranked  bis 
opinion  amongst  the  highest  authorities  of  law, 
expressly  says  (g),  that  the  body  of  a  freeman 
cannot  he  made  subject  to  distress  or  imprison- 
ment by  contract,  but  only  by  judgment. 
There  is,  however,  one  rase,  in  which  it  is 
said  that  the  performance  of  a  service  to  be 
done  abroad,  may  be  compelled  without  the 

(e)  Wilk.  Leg.  8axon.  p.  «29,  etcap.  65, 
Leg.  Gulielm.  1. 

^)  This  law  furnishes  one  more  arg^ument 
against  slavery  imported  from  a  foreign  coun- 
try. If  the  law  ik  England  did  not  disallow 
the  admission  of  ftuth  a  slavery,  would  it  re- 
strain the  master  from  taking  his  slave  out  of 
the  kingdom  ?  (^)  Hob.  61. 

F 


The  Ntgro  Case. 
h  MaCliMi  in  wliicli  ncf^roei  ha>e  Ihe  mis- 
iMuap  la  be  coaiiiterMl,  elfectUHlly  prevails 
ll«r  uDimrtalion  in  any  uoiMiilrnible  x\e%ten. 
Oi|te  wc  not,  on  nur  |<arl,  tu  q;iiaril  atiil  pre- 
MtH*>i  librrtv  by  wliicli  w«  are  ilialingoiNlidl 
!»  »>  Uw  earih  !  in  be  jf Biiiu»  of  n hareVFr 
^■vc  tijui  a  IfDilpm-y  lu  iliiiiuii*h  tlic  vrn?- 
MM  doe  m  ibe  first  of  UoHtdirsf  The  tinrriil 
«mthn,  iKwrc^  cmlible  in  rcciUl,  wrpetrated 
■  <—ric«,  mtglil,  liy  (Itc  alluwonFt'  ul'sla>» 
WM^  tn,  h«  iutmliirpil  here.  Could  your 
JMMip,  coaltt  noy  lilierii<  and  infcenunua  le<n- 
paiOMlun,  In  ifaefii'ldaborilrringnu  Ihia  city, 
Mms  •  wrMcli  bouDd  li)r  aonip  trivial  nSrnce 
I*  a  ucr,  lara  and  a^iiiiixio^  benettli  the 
HMtfc  f  thieh  objf ctH  mi|{bl  by  time  bpcome 
twill  I r,  b««ucDe  unhmleil  by  (bii>  nation  ; 
■MiiNid,  ■■  (bey  arv  nnw,  to  I'ar  different  sen- 
ton^.  tri>y  (l«ne  ifnlimenla  uevcr  be  eA 
liacil  ibe  l<«4iD){s  uf  hiimaiiily  I  the  ^eneraua 
■Sm  of  Tree  minds!  A]ay  tuch  principle* 
ttfttbe  CBrTti|ited  hy  the  mixture  i)f'  slHTiKh 
aMonal  Not  cau  I  beliere,  we  shall  autfer 
H*  iadt*til(«»l  liiinjf  here  tn  want  that  lihrrlv, 
*Mae  eflVcW  arc  clory  and  bappiness  to  the 
faKeaml  ncry  iodiviilual. 

Br.  Wallace. — Theqiie<tioD  hn«  been  slated, 
•Mb«r  Ibv  n^hl  can  be  auiiporleil  bere;  or, 
iTiloMi,  wlte<ber  a  coui-ae  nt'  proceeding's  at 
Uv  he  not  n«ceaaary  to  give  effect  lo  the  ri|;lit7 
b  la  liwail  in  tlim  i|uarlera  of  the  globe,  and 
B  ftn  af  ib«  f'nurlh.  In  Asia  the  wbnie  |iea- 
)1(;  ia  Afnea  and  America  far  (be  i^eater 
pull  <■>  Kiiropv  great  numliert  or  the  Itiia- 
'n  and  puUndeni.  Aa  tn  captivity  in  war, 
■■  CkruOian  prince*  liave  bteu  nvA  to  i^ive 
!■  IB  ibe  priauaera ;  and  it  look  rise  probably 
iiMCetiaailra,  when  they  gnte  llirn)  hie.  Bad 
<^i«aM  r-ufraiicbjtied  ibem,  tu  inlisl  under 

MMMki  Th«  ri|{hl  of  a  conijueror  wui  abso- 
kw«  Eiiivpe,  and  i*  in  Africa.  I'be  natirea 
M  bnoybl  from  Africa  tntlie  West  ludiei; 
MNlai*  ia  tnaile  ibere,  aal  became  nf  poaiti*e 
wm,  l«  tWt*  bein|{  im  law  auaintt  ii.  Il  can* 
■■  ba  ia  MMnlemlinu  by  ibis  or  any  olber 
■M,  laaae,  wliptbcr  ihe  West  India  r«Ku1a- 
fe^an  lIlebM)  poaiible;  iuch  ■■  tbey  are, 
•Ua  tmf  cMtlifiur  in  liirce  aa  lawa,  tbey  muat 
liirikHailla.  Aa  to  Eni^land  nnl  prrmiliin); 
i^twy,  llan«  U  no  law  a^inil  it;  nor  ilo  1 
Uaay  anainpt  liaa  been  made  tu  pnire  the 
aaUM*  afaae.  Villeoaga  itself  has  all  but 
htaaa*.  Ttiaagb  Ibe  ilia<ohiliiiii  ufm'inas- 
Ma,  aaBBHC**  ulber  material  allerations,  did 
aMaaad  lb*  decay  of  that  tenure,  aUves  could 
halba  n  EnirlaDii  :  for  villeins  were  m  Ihi* 
ttmttj,  aarf  trere  mere  alavea,  in  Elizabeth. 


[Urd  M 

'■  1  aaai  aa  aaaeriiua.  bill  duea  not  recollect  ibe 
L  Mr,  tfaal  Ivo  »uly  were  in  England  in  the 
-••f  ClHrlealh«3•l,altbetimeoftheahnli- 
T:  4  iBsna.J  In  (be  caiiet  oilMl,  the  two 
-HfiiaeUy  alfcnn  an  aCii"!) of  ir.ner,  ao  action 
'•^^ftmfUdto  merB  Gomiiian  chadeN.  Lord 
■-" —  1  a  meia  dMlum,  a  deci&ioo 


A.D.  1771.  [70 

unsupporled  by  preceilenl.     And  if  it  be  nh- 

{ecteil,  that  a  pmper  action  rflubl  not  ha 
ironelii.  il  is  a  known  and  allowed  priictire  in 
mercantile  IrnnsaciinnK.  ii'  the  cnuie  ariiei 
■liroad.  In  lay  il  wilhin  Ibe  liinijdom :  therefore 
the  rnnirai't  in  Viricini*  inight  lie  laid  to  be  in 
London,  and  wunlil  not  be  irareriiable.  With 
re  peel  to  llie  wher  c«s<^,  ihe  pariicidar  mode 
of  action  was  ainne  nbjrcieil  in ;  had  ii  been  an 
Aclinii  '  per  qniMl  servitimii  amiail,'  for  Iob-i  of 
seiiice,  ihp  Court  wiiuld  have  allowed  it.  The 
Cuiii'l  called  ibe  pemon.  for  the  recovery  of 
uhoiii  It    wag   broiiitbi,  a  slavish  servant,  in 

I  Cbaiiiberlayne's  cnse.  Lord  llanlwicke.  and 
ilii'  atterwanit  lord  chief  juaiice  I'albol,  then 
alinrney  and  aolicitor-genenl.  prnn'iuiMed  a 
aiave  not  free  by  coinine  into  England,  It  is 
neccaidry  the  iiiaHlers  shonld  briny  them  over; 
for  lliey  cannnl  trutt  the  h  bites,  either  wilh 

I  the  atorea  or  the  navigatini;  the  vessel  Tliere- 
fore.  the  Iwnefit  taken  on  the  Habeaa  Curpui 
AciooKiit  tube  allowed. 

I  LorrI  Manijield  obaervea,  Tbe  ease  alluded 
lo  was  u Jinn  a 'petition  in  Lioroln's  Inn  Hall, 
after  dinner ;  probably,  thtreliire,  mi);bl  not, 
OS  he  believes  ibe  contrary  is  nnl  unnaaal  al  that 
hour,  be  taken  with  much  accuracy.  Tbe 
principal  maiter  was  ihen,  on  the  earnest  toli- 
dtalion  of  many  mercbanls,  lo  know,  whether 
a  slave  was  freed  by  being  made  a  Christian? 
And  il  was  resolved,  not.  It  Is  remarkable, 
though  tile  Engl ixb  look  infinite  pains  beliire 
to  |irevenl  ibeir  slaves  being  made  Christiana, 
that  ihey  might  not  be  freed,  the  French  sug^ 
gested  ihey  mutt  bring  Iheir'a  into  France, 
(wlieD  the  edict  of  1706  was  |ietilioned  for.J  lo 
make  them  Christinns.  He  aaid,  the  disliuc- 
tion  was  difficult  as  loslavrry,  which  could  not 
be  resumed  after  emanuipaliDn,  and  yet  ihecon- 
ditirmoftlaiery.in  ilsfuli  eStent,cauldnolhetD- 
leraiedhere.  lUucbcunsiderationwai necessary, 
lo  define  bow  far  (lie  point  should  be  cstried. 

The  Conrt  must  uunnder  Ibe  great  de- 
triment lo  proprietor*,  there  being  so  great 
a  number  in  tbe  ports  of  ibis  kingdom,  that 
many  thousands  of  pounda  would  be  lost  to  (be 
uwncri.  by  seKing  Ibem  free.  (A  gentlemaa 
observed,  no  greai  dauger;  for  in  a  whole 
Heel,  tianally,  there  would  not  be  aix  alates.) 
A*  to  Prunce,  ibe  case  stated  decides  no 
farther  than  that  kingdom;  aud  (bere  freedo(n 
»as  cUiinrd,  because  the  slave  had  not  been 
registered  in  ibe  port  where  be  eiiiered,  con- 
I'ormably  to  the  edict  of  170<i.  Mighi  noi  a 
«lave  na  well  be  freed  by  going  oui  "f  Virginia 
lo  Ibe  adJBient  couolrv,  where  Ibere  are  no 
alavea,  if  change  lo  a  place  of  contrary  custom 
was  sufficient  ?  A  statute  by  the  legislaliire,  to 
auhjei-l  ihe  Weal  ladia  properly  to  payment  of 
debu,  I  bD|ie,  will  be  thought  some  proof;  an> 
other  act  devests  tbe  Africaa  company  of  their 
•laves,  and  vests  them  io  the  West  India  Coiii' 

Kany  :  I  say,  I  hope  tliese  are  proofa  Ihe  law 
■■  interfered  for  the  inainlenance  of  tbe  trade 
in  klaven,  and  Ibe  iraimferriiig  of  slavery,  Aa 
for  want  of  apphcutiiin  properly  to  a  court  at' 
juatice  i   B  common  nervani  may  be  coirtciaA 


71]  12  GEORGE  III. 

here  by  his  maAter's  prif ate  aiitbority.  Habeas 
Corpus  acknuuieU^es  a  ri<jht  to  seize  pt:rsoiiB 
by  i'urve  employed  to  ai*rve  abroad.  A  riiebt  ol' 
coiiipiilsiun  (here  must  be,  or  ilie  master  trill 
be  uutterthe  ridicuU»us  iiei'esbtty  of'nCirlectUiip 
bis  proper  buaiuesSf  by  stayin<^  here  to  have 
their  service,  or  must  he  <|uiie  deprived  of  those 
slaves  lie  has  beeu  obliunl  to  briog  over.  The 
case,  as  to  service  tor  life,  was  uot  allowed, 
merely  tor  waut  of  a  deed  to  pasd  it. 

The  Court  approve^l  Mr.  Alley ne's  opinion  of 
the  distinction,  how  tar  niuuicipal  laws  were  to 
be  refj^rded  :  instaitced  the  right  of  marriag^e ; 
which,  properly  stdeamiased,  ivaa  in  all  piacess 
the  same,  but  the  resfulatiojis  of  power  over 
childreu  from  it,  and  other  circumstances,  very 
various;  and  advised,  if  the  merchants  thought 
it  so  uecessary,  to  apply  to  parliament,  who 
could  make  laws. 

Adjourned  till  tliat  day  se'nnight. 

Mr.  Dunning. — It  is  incumbent  on  me  tojas^ 
4ify  captain  Roowles's  detainer  of  the  nei;ro ; 
this  will  be  efiecteil,  by  proving  a  right  in  Mr. 
Steuart;  even  a  supposed  one:  for  till  that 
matter  was  deteruiiued,  it  were  somewhat  un- 
accountable tliat  a  negro  should  depart  his 
service,  and  pat  the  raeanv  om  of  his  power  of 
triyog  that  tight  to  cfleci,  by  a  6ight  out  of  the 
Icingdom.  i  will  ('xplaio  what  appears  to  me 
the  tbundaiion  of  Mr.  Steuart's  claim.  Before 
the  writ  of  Habt-as  Corpus  issued  in  the  present 
case,  there  was,  and  tlif  re  still  is,  a  great  num- 
ber of  slaves  in  Africa,  (from  whence  the  Ame- 
rican plantations  are  supplied)  who  are  saleable, 
and  in  IJMrt  sold.  L-uder  all  these  descriptions 
is  James  8ommersett.  Mr.  Steuart  brought  him 
over  to  England ;  purp;)s:ng  to  return  to  Ja- 
maica, the  negro  chose  to  depart  the  service, 
and  was  stopt  and  detained  by  ciptain  Knowles, 
until  bis  master  should  set  sail  and  take  htm 
away  to  be  sold  in  Jamaica  The  gen;leoien 
on  the  other  side,  to  whom  1  impute  no  blair.e, 
but  on  the  other  hand  mucb  ctniuit-ndation, 
baTe  advanced  osany  iiii^euious  propositions  ; 
•part  of  which  are  undeuiaWly  true,  and  part  (as 
w  usual  io  compositions  of  int^enuity)  very  dis- 
putable. It  is  my  mi>f  triune  to  addr^  an 
audience,  the  grt^ier  part  of  which,  I  fear, 
are  prejudiced  the  other  way.  But  wishes.  I 
am  well  convinced,  mill  ne«er  enter  into  \our 
lordships*  minds,  to  influence  the  determination 
4lf  the  poiut:  this  cause  must  be  what  in  fact 
•ml  law  it  is ;  its  late,  I  trust,  therefore,  de- 
aaa4s  on  fi\t  invariable  rules,  resulting  by  law 
iom  the  nature  of  the  case.  For  myselt'.  1 
aaanld  not  be  understood  to  intimate  a  wish  in 
Afuur  of  aUvery,  by  any  means;  nor  on  the 
Alher  side  to  be  supposed'  the  mamuiner  of  an 
apiaioD  contrary  to  my  own  judgment.  I  am 
Mwnd  by  duty  to  oiaintaiu  those  argot nenis 
•yj"^."g  must  nactfiil  to  captain  Knowles,  as 
nras is eoBsittmt  with  truth ;  ami  if  hi« coo- 
a^  ????**"  ■fRcable  lothelaws  throughout, 
'UK  aMcr  a  laitbcr  indtspeasable  duty  to  tup- 
^  mk  mm  albcr  aiisatiaa  tbaa  may 

aftbc 


The  Negro  Case. 


[78 


4|uesiioo :  less  than  this  I  have  do  reason  lo 
ex|iect ;  more,  I  neiiher  demand  n«»r  wish  to 
havealloweil.  Many  alarming  apiirrheusions 
have  l»ecn  eniertaineil  of  tiie  consequence  of*  the 
dtH^ision,  eiiher  way.  About  14,<»00  slaves, 
from  the  most  exact  intelligence  I  am  able  to 
procure,  are  at  present  here ;  atod  some  little 
lime  past,  166,914  in  Jamaica ;  there  are, 
hesitles,  a  number  of  wild  negroes  in  the  woods. 
Tike  computed  value  of  a  negro  in  those  parts 
SO/,  a  head.  In  the  other  islands  I  cauDOt 
state  with  Uie  same  accuracy,  but  on  the  whole 
they  are  about  as  many.  The  meaos  of  coa« 
veyance,  I  am  lold,  are  maniiold  ,  every  familv 
almost  brings  over  a  great  number;  and  will, 
be  the  decision  on  which  side  it  may.  Moal 
negroes  who  have  money  (and  tliat  descriptioa 
1  Iwlicve  uill  include  nearly  all)  make  ioteresk 
with  the  com  moo  sailors  to  be  carried  hither. 
There  are  nei^roes  not  falling  under  the  proper 
denominatitin  of  any  yet  niensioned,  descen- 
dants of  the  original  slaves,  ihe  aborigines,  if  i 
may  call  them  so ;  these  luve  gradually  ac- 
quired a  natural  attachment  to  their  country 
and  situation;  in  all  insurrections  they  side 
with  their  masters:  otiierwise  the  vasi  dispco- 
portion  of  the  negroes  to  the  whites,  (not  less 
probably  than  that  of  100  to  one)  wuiild  have 
been  fatal  in  its  consequences.  There  are  rery 
strong  and  particular  grounds  of  apprefaeo- 
sion,  if  the  relation  in  which  they  stand  to 
their  masters  is  utterly  to  be  dissolved  on  the 
instant  of  their  doming'  into  England.  Slavery, 
say  the  gentlemen,  is  an  odious  thing ;  the 
name  is :  and  the  reality  ;  if  it  were  as  one  has 
defined,  and  the  rest  supposed  ii.  If  it  were 
accessary  to  the  idea  and  the  ezislence  of 
James  8ommerwtt,  that  his  master,  even  here, 
mi<;btkill,  nay,  might  e.ii  him,  might  sell  living 
or  dead,  might  make  him  and  his  descendants 
pro)>erty  alienable,  and  thus  trananaissible  to 
posterity  ;  this,  how  high  soever  my  ideas  may 
be  of  the  duty  of  my  profession,  is  what  i 
should  decline  pretty' much  to  defend  or  aa- 
sert,  fer  any  pnr|i08e,  seriously ;  I  should  only 
speak  of  it  to  testify  my  contempt  and  ab- 
hnirence.  But  thift'i<  w'bat  at  present  I  ass 
not  nt  all  concerned  in ;  unless  captain  Knowles, 
or  Mr.  Steuart,  have  killed  or  eat  bins. 
Freedom  has  been  asserted  as  a  natural  right, 
and  therefore  unaUenable  and  unresirainithle  ; 
there  is  (lerhaps  do  branch  of  this  right,  but  in 
some  at  all  times,  and  in  all  places  at  diffn^ent 
times,  has  lieen  restrained  :  nor  couM  society 
otherwise  be  conceived  to  exist.  For  the  KTcal 
benefit  of  the  public  and  individuals,  natuial 
Hheriy.wliieli  cnnsisU  in  doing  what  one  hkes, 
is  altered  to  the  doing  what  one  ought.  Tba 
centlemen  who  have  spoke  with  so  iiinch  seal, 
have  supposed  different  ways  by  which  slavery 
commences;  but  ha«e  omiiicd  one,  ami  rightly  { 
lor  it  would  have  given  a  ai* ire  favourable  idea 
of  the  nature  of  that  power  agaiost  which  ibay 
combat.  We  are  apt  .and  great  authoritiaa 
support  this  wsy  of  S|ieaking)  to  call  tbose  na* 
Hobs  nniTcrsaUy,  whose  laMsl  police  wa  wa 
•TybaibariaH;  (tbut tbe Gmba,  pw. 


<,  Mhose  cuilomi, 
r  JuitiAuble 

^..    ,.  L-Rllin^  ilifMi  tMiliariikni,  wp  lire 

ttfiMAuiL  Ijtnii  so,  ami  draw  cunclutinns  ac- 
w^ty-  TImm*  are  alavcs  in  Al'fica  by  cap- 
iMf  n  wkr,  but  ilii-  iiU[iibfr  lir  tnim  ^tesl ; 
AcoMMtry  u  dinidetl  iuln  tnauy  iinall,  some 
^M  loTUutm,  u  till  ila,  ill  tii^ir  wan  wilb  ciiie 
aMbrr,  umc  lliiii  mttuui.  There  are  ol'  Ibt^c 
^flc,  mm  tthu  Iwvu  a  ifiiM-  uf  the  H(r|>l  and 
uAv  «f  inrduiii  ;  bul  wliu  iinneiae  llial  oC- 
l^mat{aiiM  ludaly  are  piiiiiBliable  junily  by 
kt**(«<>bwul'*ertiliMl«,  I'DrarimeB  against 
pofcny, «  MHuulcraUK  ailiiiliun  ia  made  lo  tbe 
OMhtr  at'  Uatcn.  Tlify  bare  ■  process  by 
■tut  ibe  qmniily  ol  tliv  di-bt  in  auMrlained ; 

adK'aUtlMfirup'rly   i>l'  Ibe  drbliir  in   KUoda 

daapMnI  ail  be  bas  bcMilM,  i»  deemed  pro- 
pnr  boMFll';  llie  proiwt  otlJoer  (ilieriH'  we 
■•T  call  bin)  •film  ilie  iii>>ultMir,  and  dia- 
pan  ol'  bioi  ta  ■  nlavr.  We  don'i  cnutcad 
M4tr  itliicfa  uf  thHc  tlii^  unf'ortunale  man  in 
^■uliaii  la ;  bul  liiv  cunditiun  was  ibat  of  cer' 
Made  in  Ab«-'i  ibe  law  nC  the  land  o(  (bat 
walijf  di^imsed  of  him  b<  pra|i«riy,  niili  all 

Iw  I  Ibe  taaluleti  uf  Ihe  Biilish  legislature 
^^rm  ihn  cmidiliiiii ;  and  iliua  lie  nas  a  slave 
lalb  HI  1«»  and  fact.  I  do  nol  aim  al  proting 
knB  fMHMi;  out  (lecauM  ibey  want  evidrnce, 
b*  bteaww  Ihr}  baie  nol  Wen  ronlrorerlcd,  lo 
■J  nntlkirtian,  and  arc,  1  Ihinh,  inCHjialile  of 
t»al.  Hr.Struart,  nilh 4tiis right,  crotwdihe 
luaale,  and  was  not  tn  Itave  lb«  Mtiatuctinn  of 
te«nHBi{,  till  after  Itl*  an-rtal  in  tliia  country, 
tM  all  ratalioa  belweeo  liim  ami  ibe  nejfro,  aa 
^■■■aiul  aervaut,  was  to  be  inoittr  of  con- 
Nikij,  mad  ofiong  legal  disquiBtlinn.  A  lew 
••lb  RMv  l>*  )impei,  cooeeriiine  the  Russian 
!  {irar«e>linga  nf  the  Huute  of 
(bat  rate.  It  is  not  abaiird  in 
iM  aitsa,  ■•  ^oiii«d,  nor  iinjiiubable  asinaiter 
<*ha;  iti«  eiprnMion  haa  a  kind  of  abautdiiy. 
I  iksb,  wiibout  any  prrjiulive  lo  Mr.  KteuaM, 
«  Hw  men^B  uf  lh>s  cauar,  I  may  adoiil  th# 
NaMt  fuaaiM*  lu  lie  deaired,  an  fur  as  Ihe 
Baa  af Mat  *U**  goea.  The  maMfr  and  slave 
■na  boili.  (uraliuuld  bate  been  at  leaii)  on 
Ibqr  «MiBnN{  li^e,  new  creatures.  Kutisian  ala- 
Mr^.  aodrtKithi.'  (iilronlioaiiun  aniaui{st  ihem- 
■rim.  lo  llie  iIe^i'  t-  ibcy  use  il,  ii  ant  here  ta 
^llryne  jually  olHiernis,  the 
>nH  111'  one  imuoiry  are  nol 
bill  docR  I  lie  rtlalnui  cnae 
LTculiuK  It,  Ibe  dejcrcf^  in 
ry  y  I  bate  nut  ht«r<l,  nor. 
my  inicniiun  in  affirm,  Ihe 
•  of  trntnt  and  afr*  aoi  cea»ea  here  f  I 
a  municipal  relaliuni  diH'er  iii  dil 


lanaa   e>4inwa,   acvoriliui;  i 


■iiiiy,  and 


■•■a.     A  diatiovlion  was  eudravoured  lo 

■bail  inrtwee.i  naliiral  and  rauDJoipal 

bat  the   iiHiiiral   relatiuns   are   nol 

vbicb  ailcnd  lUaperaoonf  Ibe  man, 

M  ura  i  w>lb  wbidi  the  munioipal 


A.  D.  I77I.  [74 

re  moat  closely  connecleil  i  municipal  lawa, 
rictly,  are  liiuse  cnnAncd  to  a  parti cularfilace; 
'""""'    -  - -'    — -     wbicb  lltt  muniei|>al  lawa 


Tbei 


tinD  nf  hoaliBiid  and  nile,  1  think  niyaelf  war- 
ranleil  in  (^umlonitig,  as  a  natural  relation  ; 
does  il  Kub!.isi  tor  lif« ;  or  lo  answer  the  nalui-al 
purposfB  wblcb  way  reasonably  lie  eiipi>used 
etieu  lo  lermiiuite  sooner  t  Yet  this  ia  iiiie  of 
those  rtlaiions  nbich  follow  a  man  atery 
where.  Ifonly  nahiral  relalioos  had  tbal  pro- 
ptrt) ,  the  elTeet  vtoubl  Ue  very  Kmlled  indeed. 
In  fact,  Ibe  municipal  laws  are  princ>|inlly  eoi- 
ployeil  in  delenniiHng  the  maniirr  by  wliicb 
relaiinnHareoreated;  and  which  mannrr  variet 
in  Tarious  countries,  and  in  Ibe  same  cnuatnr 
at  different  periods  t  tbe  polillcat  relation  itsefr 
eonlinuing  usually  unchanged  by  the  cbanM 
of  plare.  Tliere  is  but  one  Ibriii  al  present 
with  ua,  by  which  the  TElaiion  of  busband  and 
H  ife  cnn  be  constiiiilrd ;  Uiere  was  a  time  when 
olherwise:  1  need  ixd  say  other  nalions  bare 
ilirir  own  modes,  fur  ibat  ami  oiber  ends  of 
socjely.  Contract  is  not  llw  only  means,  on 
(be  oilier  haiiil,  of  producing  Ihe  relation  of 
mattrr  and  serranl ;  Ihe  magiEiralea  are  em- 
powered lo  uLlitje  peraoos  under  certain  cir- 
cuuialnnces  lo  serve.  Let  me  take  notice,  nei- 
Ibei'  ibe  nir  of  Entjland  is  too  pure  lor  a  glare 
to  brealbe  in,  nor  have  ihe  tawa  of  England 
rejected  sertilude.  Villenage  in  this  country 
is  said  tu  be  worn  oui ;  (be  proptieiy  of  the 
ejipresaion  strikn  me  a  little.  Are  the  lawa 
not  ex.stinijT  by  which  it  was  created  F  A  mai- 
ler of  more  curiosity  than  use,  i(  is,  to  enquire 
H  ben  tbal  set  of  people  ceased.  The  slatuie  of 
tenures  ilid  not  however  aboliab  villeuage  in 
gross;  it  left  persoDs  of  that  condition  in  Ihe 
sanie  state  as  hetbre  ;  if  their  desceniloDts  are 
■II  deiid,  llie  gentlemen  are  rigbl  lo  say  the 
subject  of  ibose  law  s  is  gone,  bul  not  tbe  law ; 
if  the  sulijeol  revivea,  the  law  will  lead  the 
subjecl.  If  tbe  blaliite  of  Charles  Ihe  9d,  ever 
be  rejiealed,  tbe  law  uf  villenaee  revivea  in  it* 
full  force.  If  my  Irarned  broilier  tbe  Serjeant, 
or  ihe  other  gentlemen  who  argued  on  Ibe 
suppuaed  subject  uf  freedom,  wilf  go  through 
an  'operatiuD  my  reading  assures  me  wdl  be 
sufficient  fur  thai  purpose,  1  shall  claim  them 
as  properly.  I  won't,  1  assure  ibem,  make  a 
rigorous  use  of  my  |iower ;  I  will  neither  seH 
them,  eat  them,  nor  part  wiib  ibem.  Il  wou1(l 
be  a  great  surprize,  and  some  inconvenience, 
if  a  lureinnur  bringing  over  a  servant,  as  soon 
as  he  got  hither,  must  take  care  of  bis  carriage, 
his  hurse,  and  bimsell  in  whatever  meibudlie 
might  have  tbe  luck  (o  iuveol.  He  muat 
lind  his  way  lo  l^ndoo  do  foot.  Re  tells  bia 
servant.  Do  ibia ;  the  servant  replirs,  Before  I 
d«  it,  I  ibiuk  lit  Id  inform  you,  Bir,  the  Drat 
Btep  on  this  happy  laod  sets  all  men  on  a  |>er> 
feci  level ;  ynu  are  just  aa  much  obliged  lo 
obey  my  mmmands.  Thus,  neither  superior, 
or  infenur,  both  go  without  their  dinner.  We 
should  tind  singular  comfort,  on  entering  tbe 
liiiiils  of  a  foreign  country,  tu  be  thus  pt  once 
daresUil  of  ail  altendance  asd  all  accominodi- 


75] 


12  GEORGE  III. 


The  Negro  Case. 


[76 


tioo.  The  ffentleroen  hafe  oolleded  more 
reading  Iban  I  ba?e  leisure  to  collect,  or  in- 
dustry (I  must  own)  if  I  had  leisure :  very 
laudable  pains  have  beeu  taken,  and  rery  inge- 
nious, in  collecting  the  sentiments  of  other 
countries,  which  1  shall  not  much  regard,  as 
aflectiog  the  point  or  jurisdiction  of  this  court. 
In  Holland,  so  far  from  perfect  freedom,  (1 
speak  from  knowledge)  there  are,  who  without 
being  conscious  of  contract,  hare  for  offences 
perjMtual  labour  imposed,  and  death  the  con- 
dition annexed  to  non- performance.  Either 
all  the  different  ranks  must  be  allowed  natural, 
which  is  not  readily  conceived,  or  there  are 
political  ones,  which  cease  not  on  change  of 
soil.  But  in  what  manner  is  the  negro  to 
be  treated  ?  How  far  lawful  to  detain  him  F 
My  footman,  according  to  my  agreement,  is 
obliged  to  attend  me  from  this  city,  or  he  is  not ; 
if  no  condition,  that  be  shall  not  be  obliged, 
from  hence  be  is  obliged,  and  no  injury  done. 

A  servant  of  a  sheriff,  by  the  command  of 
his  master,  laid  hand  gently  on  another  ser- 
vant of  bin  master,  and  brouebt  him  before  his 
toaster,  who  himself  compelled  the  servant  to 
hit  duty;  an  action  of  assault  and  battery, 
and  false  imprisonment,  was  brought ;  and  the 
principal  quesiinn  was,  on  demurrer,  whether 
the  master  could  command  the  servant,  though 
he  might  have  justified  his  taking  of  the  ser- 
¥ant  by  his  own  hands  ?  The  convenience  of 
the  public  is  far  better  provided  for,  by  this 
private  authority  of  the  master,  than  if  the 
lawfulness  of  the  command  were  liable  to  be 
litigated  every  time  a  servant  thought  fit  to  be 
neffligent  or  troublesome. 

Js  there  a  doubt,  but  a  negro  might  interpose 
jn  the  defence  of  a  master,  or  a  master  in  de- 
fence of  a  negro  ?  If  to  all  purposes  of  ad- 
vantage, mutuality  requires  the  rule  to  extend 
to  those  of  disadvantage.  It  is  said,  as  not 
formed  by  contract,  no  restraint  can  be  placed 
by  contract.  Whichever  way  it  was  formed, 
the  consequences,  good  or  ill,  follow  from  the 
relation,  not  the  manner  of  producing  it.  1 
may  observe,  there  is  an  establishment,  by 
which  magistrates  compel  idle  or  dissolute  per- 
-  sons,  of  various  ranks  and  denominations,  to 
serve.  In  the  case  of  apprentices  bound  out 
bv  the  parish,  neither  the  trade  is  left  to  the 
choice  of  those  who  are  to  serve,  nor  the  con- 
tent of  parties  necessary ;  no  contract  there- 
fore is  made  in  the  former  instance,  none  in 
the  latter ;  the  dnty  remains  the  same.  The 
case  of  contract  for  life  quoted  from  tbe  year- 
books, was  recognized  as  valid ;  the  solemnity 
only  of  an  iostrument  judged  requisite.  Your 
lordships,  (this  variety  of  service,  with  divers 
other  sorts,  exibtinj^  by  law  here,)  have  tbe 
option  of  classing  him  amongst  those  servants 
which  be  most  resembles  in  condition :  there- 
lora,  (it  seenu  to  me)  are  by  law  authorised  to 
Mlbroe  a  servioe  for  life  in  the  slave,  that  be- 

ftLi  ^*^L-^C  *•■•  •i^o^^ion  before  his  coming 
ltttt«r;  wbiehy  as  Qot  incompatible,  but agree- 
SHj  •^^WtjinayjiitUytiibBisthefB:  I 
m/mh  A  nvhl.  my,  moat  Deootarily  iubnit; 


as  a  consequence  of  a  previoDS  right  in  Mr, 
Stausrt,  which  our  institutions,  not  dissolving, 
confirm.     I  don't  insist  on  all  the  consequences 
of  villenage;    enough  is  established  for  our 
cause,  by  supporting  the  continuance  of  the 
service.       Much    has    been  endeavoured,    to 
raise  a  distinction,  as  to  the  lawfulness  of  the 
negroes  commencing  slave,  from  the  difficulty 
or  impossibility  of  discovery  by  what  means, 
under  what  authority,  he  became  such.    This, 
1  apprehend,  if  a  curious  search  were  made, 
not  utterly  inexplicable ;  nor  the  legality  of  bit 
original  servitude  difficult  to  be  proved.    But 
to  what  end  ?   Our  legislature,  where  it  finds 
a  relation  existing,  supports  it  in  all  suita- 
ble consequences,  without  using  to  enquire 
how  it  commenced.    A  man  enlists  for  no  spo- 
cified  time;   t|ie  contract  in  construction  of 
law,  b  for  a  year :   the  legialature,  when  onoe 
the  man  is  enlisted,  interposes  annually  to 
continue  him  in  the  service,  as  long  as  the 
public  has  need  of  him.     In  times  of  public 
danger  he  is  forced  into  tbe  service;   the  lawa 
from  thence  forward  find  him  a  soldier,  mako 
him  liable  to  all  the  bdrden,  confer  all  the 
rights  (if  any  rights  there  are  of  that  state) 
and  enforce  all  p«ialties  olf  neglect  of  any  duty 
in  that  profession,  as  much  and  as  absolutely, 
as  if  by  contract  he  had  so  disposed  of  him- 
self.   If  the  Court  see  a  necessity  of  entering 
into  the  large  field  of  argument,  as  to  right  w 
the  unfortunate  roan,  and  service  appears  to 
them  deducible  from  a  discussion  of  that  na- 
ture to  him,  I  neither  doubt  they  will,  nor  wish 
they  should  not.     As  to  the  purpose  of  Mr*  , 
Steuart  and  captain  Knowles,  my  argument 
does  not  require  trover  should  lie,  as  tor  re- 
covering of  property,  nor  trespass :   a  form  of 
action  there  is,  the  writ  Per  Quod  Servitium 
Amisit,  for  loss  of  service,  which  the  Court 
would  have  recognized  ;   if  they  allowed  the 
means  of  suing  a  right,  they  allowed  the  right. 
The  opinion  cited,  to  prove  the  negroes  free  on 
coming  hither,  only  declares  them  not  sale- 
able ;  does  not  take  away  their  service.  1  would 
say,  before  I  conclude,  not  for  the  sake  of  the 
court,  of  the  audience ;     the  matter  now  ia 
question,  interests  the  zeal  for  freedom  of  no 
person,  if  truly  considered  ;    it  being  only, 
whether  I  must  apply  to  a  court  of  justice,  no 
a  case,  where  if  the  servant  was  an  Englisli- 
man  I  might  ose  my  private  auUiority  to  en- 
force the  performauce  of  the  aervice,  accdrd- 
ing  to  its  nature,)  or  may,  without  force  or  out- 
rage, take  mv  servant  myself,  or  by  another. 
1  hope,  therefore,  I  shall  not  suffer  in  the  opi- 
nion of  those  whose  honest  passions  are  fired 
at  the  name  of  alavery.      1  hope  I  have  not 
transgressed  my  duty  to  humanity  ;  nor  doubt 
I  your  lordship's  discharge  of  yours  to  justice. 

Davy,  Serj. — My  learned  friend  has  thought 
proper  to  consider  the  question  in  the  begin* 
aing  of  his  speech,  as  of  great  importance : 
it  is  indeed  so ;  hot  not  for  uose  reasons  prin- 
cipally assigned  by  him.  1  apprehend,  my 
lonl,  the  honour  of  Sqglaiid,  toe  honoor  of 


The  Stgro  Cote. 
4t  li»»  w90rmw<f  Envlithniin,  here  or  nbroail, 
itwn  voBCVfnctl.  He  olwerreH.  the  nuuilier 
k  14,<W0  ur  15.0001  if  sn,  bi|;li  lime  lu  |iut 
Msilta  lite  pftciice;  m(irecii|>eci>Uj,iiiicc 
Ibn  nnst  be  seal  back  »»  slltrs,  ihou^li  ver- 
•■iiherF.  Tbe  ini-reusv  ol'  iucli  inliabilanls, 
ml  launvivii  in  llie  prmpvriijr  ol'  ■  euuolry, 
Untj  iiMnicious  ;  in  au  ibliui),  nhkh  cud,  hi 
■A.  uAt  exlcnil  its  limib^  nor  conse[|ueiilly 
■■•tuii  uMve  tbaa  a  ctrtHiD  number  ol'  inbu' 
lAMi,  ilaafterndB  in  excess.  Moue^  from  tii- 
n^  nde  (or  any  ntlier  nieaiit)  is  ont  Ibe 
•allh  af  •  Daliun ;  nnt  coailiices  any  thing  to 
mfmm  tt,  >*y  farther  ihsu  the  )iruduc^ol  the 
■nk  will  MHWCf  the  ilemanil  of  DcceEMrins. 
la  that  owe  :nnney  enriches  the  iuhabilanli, 
m  kriag  Uic  coiuroon  represenlalive  of  lliose 

^BipMry  and  mrUsB,  If  the  encrease  of  ^a- 
)lt  esc>«(blfae  aunual  alock  of  |>ruiiEitons  rc' 
fibiw  lor  tikeif  aubfelHlence.  Tbus,  foreig-n 
MtaiiMBiu  inbabitanli  aitfjmpntinit  perpelii- 
mj,  are  ill  lo  be  allowed  ;  a  nation  of  enemies 
■  Um  iMrt  «r  a  slale.  Mill  uoree.  Mr.  Don- 
aN|  Blailcil  ItimMlf  of  a  Hruug  inlerpretalion 
rf  ika  «onl  ■  Datural :'  it  n'M  na  uacil  in  the 
•«w  IB  «rki^  be  tboutrht  (it  to  understand 
bat  cjipnrvatOD  i  it  was  useil  oh  moral,  which 
*■  hm  can  supersede.  All  coniracis,  I  do 
mt  nature  la  auen,  are  of  a  moral  nature ; 
lu  I  know  ool  any  law  lo  confirni  an  iminnrsi 
cattnei,  and  execute  it.  The  conlracl  of 
mntift  l»  a  taaral  contract,  nlnliliahed   lor 

cnnl  poTpotea,  eoforoint;  moral  uhligaliong ; 

■-■  ngh*  nl  lakin);  property  hj  descent,  the 
j'^ncy  af   children;  (who  in  France  are 

-  -ima  Ir^llimnle,  though  horn  belbre  the 
-•-ra^  in   EDglanJ  doI]  :  these,  anil  many 

iikw  nose^uencM,    How  I'roni  the  fnirrlage 

"TiAfj  •Awiiinixi'd ;  are  cnveroed  by  the  >nu- 

-    ol  law*   of  thai    partjcniiir  sttle,    under 

-•4a  iaalilalioni  tbe  contra  cling  and  ditposiQ){ 

^i^i^lcta  aa  aubjecla  ;  anil  by   whose  csLa- 

tiiakad  fama  they  Hibmil  tbe  relation  In  be  re- 

fidMii,  w  Gu  ai  ilB  couariiuenceE,  not  von- 

^ttmf  the  noml  <ibli|>atioii,  are  iolereiled. 

li  iL*  cue  of  Thorn  mid  Wbikin*-,  in  wbleb 

I  ;ii|>  waa  counsel,  dctermlneil  before 

■.  „k.^A    mm    died   in    England, 

.   iiiScMlanJ;  ha*in|r  a  brother  of 

i\i  ■  filter  of  the  half  blood  ;  the 

"  laws  of  Scntlanil,  coutd  not  take. 

:  .i|r)diea  tor  BdcniniBtralion  to  take 

.    mie,  real  and  peraonal,  inlo  hit 

,  1-r  bii  own  me;  the  aiiter  tiles  a 

>,  i-,.,t.«-ty.     The  tben'Mr.  Attoniey-Ge- 

il  ^u  in  auncr  for  the  defendant ;  and  af- 

'  -a,  ibe  ertair,  as  beina  in  tkutland,  and  de- 

>     diMT   fnati  a  liicolcniiian,  ahoutd  be  go- 

■aad  \j  that  law.     Lord  Hardwicke  over- 

•J  tha  wljeetiun  a;r*<nil  tlie  siiler'a  taking; 

'  Ivari   llarre   was  uu   pretence  for  it ;   and 

'    ir    t»  iIms  elfrct,  land  neatly  in  tbe  fol- 

-  at  worrit—"  Supptne  ■  foreiffner  has  ef- 
■r  atacki,  auil  diet  abroad ;  tbry  mint 
Bled  acxiordiriK  lo  the  laws,  not  of 

lyltacwlwrabts  affri:ti  were,  but  ef  that  to 


A.D.  1771. 
which  u  a  lubjeci  he  belongeil  at  Ihe  lima 
of  bia  death."  All  relalionaKorrrned  by  mu- 
nicipal laws,  must  be  so  Uu  dependant  nil 
ihera,  ilial  if  the  parlies  change  iheir  country 
Ihe  municipal  laws  give  way,  if  contradiclury 
lo  the  poiiilcal  regulalionauf  thai  oiher  country, 
rSeellie  cases  died  in  Fabrigaxn.  Moslyn.io/] 
In  the  case  of  master  and  slare,  beinif  no 
moral  obligation,  but  founded  on  principles, 
and  aupporled  by  practice,  ullerly  l'oreii(n  la 
the  laws  and  ciislomii  nf  this  country,  the  law 
cannot  recog-nixe  such  relation.  The  urgii- 
menia  founded  on  municipal  regulations,  con- 
sidered in  their  proper  nature,  haTebeen  treated 
an  fully,  so  learnedly,  nod  ably,  as  scarce  lo 
leare  any  room  for  observalioun  on  that  suh- 
jed:  any  thing  I  could  offer  to  enforce,  wotilj 
rather  appear  to  weaken  ibe  Droposiiiup,  com- 
pared wiib  ihe  strength  and  propriety  with 
which  that  subject  tias  already  beeu  explained 
and  urged.  I  am  not  concerned  to  dispute, 
Ihe  negro  may  contract  lo  serve ;  nor  deny 
llie  relation  between  ihem,  while  he  continoea 
under  bia  original  proprlelor's  roof  and  pro. 
tectlon.  It  is  remarkable,  in  all  Dyer,  (lur  I 
have  caused  a  search  lu  be  made  as  far  as  ihe 
4lh  of  Henry  the  8th,)  there  is  not  one  instance 
uf  a  man's  being  held  a  villein  who  denied 
himaelf  to  be  one ;  nor  can  l]lind  a  cnnfesiion  of 
rlllenage  In  those  times.  ^Lord  Manifield ; — 
The  last  confession  of  rilleuage  extant,  is  in  the 
Idth  of  Henry  ibe  Gtb.]  Iflbe  Court  would 
acknowledge  the  relalion  nf  master  and  aer- 
Tsnt,  it  ceriainly  would  not  allow  the  most  ex- 
ceplionable  jiart  of  slavery ;  that  of  being 
obliged  lo  remove,  at  ihe  will  of  the  master, 
from  tbe  protection  of  tliis  land  of  llberly,  lo  a 
country  where  ihere  are  no  laws;  or  hard  laws 
lo  insult  bitD.  It  will  not  permit  slavery  sus- 
pended for  a  while,  suspended  during  ihe  p]ea< 
sure  of  ihe  master.  The  instance  of  mnslei- 
andservanl  commencing  without  contract ;  and 
that  of  apprentices  against  the  will  of  ibe  par- 
ties, (ihe  latter  fouud  In  lis  cnnaequvnces  ex- 
ceedingly pernicious;)  both  these  are  prortded 
by  special  slaiulea  of  our  own  municipal  law. 
If  made  in  France,  or  any  where  but  here, 
they  would  not  have  been  binding  here.  To 
punish  not  even  a  criminal  for  offences  aninat 
ibe  lawa  of  another  counlry  ;  lo  set  tree'  a 
galley-slave,  who  is  a  slave  by  his  crime;  and 
make  a  slave  of  a  n^ro,  who  is  one,  by  hi* 
complexion  ;  is  a  cruelly  and  absurdlly  thai  I 
trust  will  never  lake  place  here :  sucn  aa,  if 
promulgrd,  would  make  England  a  disgrace  lo 
all  the  nations  under  heaven  :  for  Ihe  reducing 


most  abject  slate.  M  r.  Dunning  lias  mentioned, 
what  he  is  pleased  to  term  philosophical  and 
moral  grounils,  I  think,  or.  something  to  that 
effect,  nf  slavery  ;  and  would  not  by  any  ineana 
have  ua  ihiok  irisrespeclfully  of  those  nalions, 
whom  we  miatakrnly  call  oarbaiiins,  merely 
Ibi'  carrying  on  tlmi  trade  ;  fur  iny  part,  we 
may  be  warranied,  1  heheve,  in  affirming  the 
iBoralily  or  propriety  of  the  pracliee  duel  nvt 


79] 


IQ  iSEOROE  III. 


The  Negro  Case* 


[80 


enter  their  head*;  they  make  slaTes  of  whom 
they  think  (It.  For  the  air  of  Englaud ;  I 
think,  however,  it  has  beeo  gradually  purifyinflf 
crer  since  the  reif^n  of  Elisabeth.  Mr.  Dun- 
ninif  seems  to  hate  discovered  so  roach,  as  he 
finds  it  chancres  a  slave  into  a  serrant ;  though 
unhappily  be  does  not  think  it  of  efficacy 
eiHiugh  to  prerent  that  pestilent  disease  re- 
Tivini;,  the  instant  the  poor  man  is  obliged  to 
quit  (voluntarily  quits,  and  legally  it  seems  we 
ought  to  say,)  this  happy  country.  However, 
it  has  been  asserted,  and  is  now  repeated  by 
me,  this  air  is  too  pure  for  a  slave  to  breathe  in  : 
I  trust,  I  shall  not  quit  this  court  without  cer- 
taiu  confiction  of  the  truth  of  that  assertion. 

Lord  Matufield, — The  question  is,  if  the 
owner  had  a  right  to  detain  the  slave,  for  the 
tending  of  him  over  to  lie  sold  in  Jamaica. 
In  fiveo'r  six  cases  of  this  nature,  1  have  known 
It  to  be  accommodated  by  agreement  between 
the  parties :    on  its  first  coming  before  me,  I 
■trongly  recommended  it  here.  But  if  the  parties 
will  hare  it  decided,  we  must  give  our  opinion. 
Compassion  will  not,  on  the  one  hand,  nor  in- 
con? enience  on  the  other,  be  to  decide ;  hut  the 
law:  in  which  the  difficulty  will  be.nnncipally 
firom  the  inconvenience  on  both  sides.    Con- 
tract for  sale  of  a  slave  is  good  here ;  the  sale 
is  a  matter  to  which  the  law  properly  and  rea- 
dily attaches,  and  will  maintain  the  price  ac- 
cording to  the  agreement.    But  here  the  per- 
son of  the  slave  himself  is  immediately  the 
object  of  enquiry ;   which  makes  a  very  ma- 
terial difierence.    The  now  question  is.  Whe- 
ther any  dominion,  authority  or  coercion  can 
be  exercised  in  this  country,  on  a  slave  accord- 
hig  to  the  American  laws  ?  The  difficulty  of 
adopting  the  relation,  without  adopting  it  iu 
all  Its  consequences,  is  indeed  extreme;  and 
yet,  many  of  those  consequences  are  absolutely 
contrary  to  the  municipal  law  of  England. 
We  have  no  authority  to  regulate  the  condi- 
tions in  which  law  shall  operate.      On  the 
other  hand,  should  we  think  the  coercive  power 
cannot  be  exercised  :    it  is  now  about  50  years 
since  the  opinion  given  by  two  of  the  greatest 
men  of  their  own  or  any  times,  (since  which  no 
contract  has  been  brousrbt  to  trial,  between  the 
masters  and  slaves;)  the  service  performed  by 
the  slaves  without  wages,  b  a  clear  indication 
they  did  not  think  themselves  free  by  coming 
hither.    The  setting  14,000  or  15,000  men  at 
once  loose  by  a  solemn  opinion,  is  very  dis- 
agreeable in  the  effects  it  threatens.    There 
is  a  case  in  Hobart,  (Coventry  and  Woodfall,) 
where  a  man  had  contracted  to  go  as  a  ma- 
riner: but  the  now  case  will  not  come  within 
that  d^sion.    Mr.  Steuart  advances  no  claims 
on  contHibt ;  he  rests  his  whole  demand  on  a 
light  to  the  negro  as  slave,  and  mentions  the 
purpose  of  dotainiire  to  be  the  sending  of  him 
over  to  be  sold  in  Jamaica.     If  the  parties  will 
have  judgment,  *  fiat  justitia,  ruatcoelnm  ;*  let 
justice  be  done  whatever  be  the  cooseqiieDce. 
SOi.  a- bead  may  not  be  a  hi^  price ;    tbeo 
A  low  followi  to  the  propfwUin  of  above 

1 


700,000/.  sterling.  How  would  the  law  stand 
with  respect  to  their  settlement ;  their  wages  ? 
How  many  actions  for  any  blight  coercion  by 
the  master  P  We  cannot  in  any  of  these  points 
direct  the  law;  the  law  must  rule  us.  In 
these  particulars,  it  may  lie  matter  of  weighty 
consideration,  what  prnvisiouM  are  made  or  set 
by  law.  Mr.  Steuart  may  end  the  questioOp 
by  discharging  or  giving  freeduni  to  the  negro. 
I  did  think  at  first  to  put  the  matter  to  a  more 
solemn  way  of  argument :  but  if  my  brothers 
agree,  there  seems  no  occasion.  I  do  not  ima- 
gine, after  the  point  has  been  discusfted  on  both 
sides  so  extremely  well,  any  new  light  could  be 
thrown  on  the  subject.  If  the  parties  chuse  to 
refer  it  to  the  Common  Pleas,  they  can  give 
themselves  that  satisfaction  whenever  they 
think  fit.  An  application  to  pnriiament,  if  the 
merchants  think  the  question  of  great  com- 
mercial concern,  is  the  best,  and  perhaps  the 
only  inethofl  of  settling  the  point  for  the  future. 
The  Court  is  greatly  obliged  to  the  gentlemen 
of  the  bar  who  have  spoke  on  the  subject ;  and 
by  whose  care  and  abilities  so  much  has  been 
effected,  that  the  rule  of  decision  will  be  re- 
duced to  a  very  easy  compass.  I  cannot 
omit  to  express  particular  happiness  in  seeing 
young  men,  just  called  to  the  bar,  have  been 
able  so  ninch  to  profit  by  their  reading.  I 
think  it  right  the  matter  should  stand  over ; 
and  if  we  are  called  on  for  a  decision,  proper 
notice  shall  be  given. 

Trinity  Term,  June  SS,  177S. 

Lord  Mansfield, — On  the  part  of  Sommersett, 
the  case  which  we  gave  notice  should  be  de- 
cided this  day,  the  Court  now  proceeds  to  give 
its  opiniou.  1  shall  recite  the  return  to  the 
writ  of  Habeas  Corpus,  as  the  ground  of  our 
determination  ;  omitting  only  wonis  of  form. 
The  captain  of  the  ship  on  board  of  which  the 
negro  was  taken,  makes  his  return  to  the  writ 
in  terms  signifying  that  there  have  been,  and 
still  are,  slaves  to  a  great  number  in  Africa ; 
and  that  the  trade  in  them  is  authorized  by  the 
laws  and  opinions  of  Virginia  and  Jamaica  ; 
that  they  are  goods  and  chattels ;  and,  as  such, 
saleable  and  sold.  That  James  Sommersett  is 
a  negro  of  Africa,  and  long  before  the  return  of 
the  king's  writ  was  brought  to  be  sold,  and  was 
sold  to  Charies  Steuart,  esq.  then  in  Jamaica, 
and  has  not  been  manumitted  since ;  that  Mr. 
Steuart,  having  occasion  to  transact  businesty 
came  over  hither,  with  an  intention  to  return  ; 
and  brought  Sommersett  to  attend  and  abide  with 
him,  and  to  carry  him  hack  as  soon  as  the  bust* 
ness  should  be  transacted.  That  such  inten* 
tion  has  been,  and  still  continues ;  and  that  the 
negro  did  remain  till  the  time  of  his  departure 
in  the  service  of  his  master  Mr.  Steuart,  and 
quitted  it  without  his  consent ;  and  thereuiion, 
before  the  return  of  the  king's  writ,  the  said 
Charies  Steuart  did  commit  the  slave  on  board 
the  Anne  and  Mary,  to  safe  custody,  to  be  kept 
till  he  should  set  sail,  and  then  to  be  taken 
with  him  to  Jamaica,  and  there  solil  as  m  shive. 
And  this  is  the  caose  why  be,  captain  &iw«ic^  , 


'.  Mosli/n. 

Mtfwatlhra  ud  nnw  is.  commuider  of  llie 
rivte  inarl,  ilien  Bod  now  l^lni;  ia  the  rirer 
rfTVanio,  rfnl  ilietaiil  iirgru,  cDmmiltcd  lo 
Ui  ohKhI;,  dtrlaJD  ;  »nii  on  whicb  lie  now 
Hjfcji  him  tu  Ibe  orden  uf  ibe  Coaii.     We 

Rtlldnv  atlrnlion  lo  llienpinion  nf  lir  Philip 
to,  had  lord  chsDcellnr  Talbot,  whereliy 
tn  piK-liTMllbEiDirWcs  lo  llH^  Brilisli  planlers, 
fit  «9  tlw  legal  CDDuqUf  nct»  of  bIdtcs  coming 
M«Tl«  thi«  fitiap-lnm  or  htiag  bajilized,  reeog- 
Mtcdh/  Wd  Hardtficke, lining  ni  cbincellor 
w ibc  19(b  atOtiohrr.  1749.  ibat  tMTer  would 
liti  iImI  ■  niii'OD  liuil  |ire*ni1e<l.  if  ■  negro 
^canie  a  Chnsliin,  be  wa* 
,  hul  no  grnund  in  law  :  Ibat  he 
Ml laril  Talbot,  wtipn  ailoinpy  ftii'l  snlitllor. 
Mnml,  wnr  nf  iipinion,  iliii  iin  such  claim  for 
liwiiwif  a^^alid;  ihal  though  the  tlitule  uf  le- 
■MwakadabotnlicdfillvintregirddnltiamaDor, 
irtfcediJ»niciMiceiTebulthata  roan  miufhtBlill 
Weamea  ntttin  it)  ^rou, by  conlvssinv  bim»cir 
Meh  ia  opm  court.  We  are  so  welT  agreed, 
Mw  tm  ihiak  there  If  no  (>ccn>:ion  nf  bating  it 
aipwd  (a«  I  iuliroaied  an  intention  at  ftnl,)  |  discharged. 


A.  D.  1775. 


[82 


before  all  the  judge*,  as  ii  umal.  for  obiioiis 
tenaons,  on  a  return  lo  a  Habeas  Corpus.  Tbn 
only  question  before  ua  is,  whelbei-  the  cause 
on  the  return  h  sufficient  ?  If  it  ii,  the  negro 
iDUsI  be  remanded  ;  if  it  is  not,  he  must  be 
ditcliarged.  Accordingly,  the  return  atatef, 
lliat  the  slave  departed  and  refused  lo  serve  ; 
whereupon  he  vrai  kept,  lo  be  wld  abroad.  So 
high  an  act  of  dominion  must  be  recogniied  bv 
the  law  of  ihe  country  where  it  is  used.  The 
power  of  a  master  o»er  bis  slave  has  been  ex- 
Iremety  different,  in  differeot  countries.  The 
state  of  slavery  ia  of  lucb  a  nature,  that  it  is 
iucapable  of  being  introduced  on  aoy  reasons, 
moral  or  political,  but  only  by  posilire  law,  wbick 
preserves  its  force  long  afkr  the  reasons,  occa- 
sion, and  time  itself  from  whenceit  wascrealed, 
ia  erased  from  meranrv.  Ills  so  odious,  thai 
nutbingcan  be  suffered  lo  support  rl,  hut  posi- 
li»e  law.  Whatever  inconTeniences,  tberelttre, 
may  follow  from  tbe  decision,  I  cannot  say  this 


549.  Proceedings  in  an  Action  by  Mr.  Anthony  Fabbigas,  against 
Lieutenant-General  Mostyn,  Governor  of  Minorca,  for  False 
Imprisonment  and  Banishment;  first  in  the  Common-Pleas, 
and  afterwards  in  the  King's-Bench ;  14  Georoe  III.  a.  d 
1773— 1774.* 


tAifallAving  Case  i*  taken  from  the  Trial, 
«W  was  printed  from  the  Notes  in  sbort- 
iMd  of  Mr.  Gumey,  soon  aner  (he  hearing. 
)'n«  lite  AddrvM  to  tbe  Bookseller,  which 
ffBwd«il  Ihe  Tfial,  il  is  plain,  that  Mr.  Gur- 
mj  waa  employed  lo  lake  notes  for  Ibe 
pbiMilf.  ami  Ibal  the  Tiial  was  published  by 
IW  idaiMir  sr  bis  friends  ^t     former  £^i- 

t»  the  CoDunOD  Pleta,  Guildhall. 


■iRRT     Fjibkiuu,    gent.    Plaintiff. 
MosTTN.   eeq.    I>efendant 


-  -'  'rr  the  Defttdaut.—'Hr.  Serjeant 
•^rjeanl  Burland,  Mr.  Seijewit 
KoUer. 

Illicksluntf,  939.     Cowp.  IQI. 

1  lie  iitle  nl'ibe  proceedinK*  first  published, 

-«  asly  llie  txial  nf  the  eaunc  U  Nini  I'riRs 

-r  Mr.  JiM.  G<iuM,  wbo  nut  for  tbe  chief 

IS  «f  the  Common   Pleas,  was  tbua  ex- 

Tke  ProMadiags  at  larre,  in   a  Cnuse  on 
^ttsMi  Wougbl  bj  AntliODj  Fabrigii,  g<aL 


1  fIB  Court  being  sal,  tbe  jury  were  called 
over,  and  the  following  were  sworn  la  try  Ihe 
issue  Joined  between  tbe  parties. 

Jury. 
Thomas  Zachary,  esq.    Mr.  Thomss  Bowlly, 
Thomas  Asbley,  esq.       Mr,  John  Newball, 
David  Pow<l,  esq.  Mr.  John  King,  > 

Waller  Enver.esq.  Mr.  James  ISraiLb, 

Mr.  William  Tomkyo,  William  Burley,  esq. 
Mr.  Glll>erl  Howard,      Mr.  James Selby. 

Mr.  Pcckham.  May  it  please  your  lord- 
shiji,  and  you  gentlemen  of  the  jury,  this  ia  aa 
action  for  an  BBsautt  and  false  iroprisoament, 
brought  by  Anthony  Fabrigas  against  John 
Mostyn,  esq.  The  plaintiff  states  in  his  ilecla- 
ration,  that  the  defenilant,  on  tlie  1st  of  Sep- 
tembor,  1771,  with  force  and  arms,  made  an 
assault  upon  him  at  Minorca  ami  Ibeo  and 
there  imprisoued  biro,  and  caused  bim  to  lia 


against  lieutenant-general  John  Moslyn,'  go- 
vernor (if  tbe  island  of  Minorca,  colonel  of  the 
first  regiment  of  drtf(oon  guards,  and  one  of  IbB 
gruoniB  of  his  majesty's  bed-cbamber;  lor 
raise  Imprisonment  and  Punishment  frmo  Mi- 
norca to  Cacthagena  in  Sjmin.  TrirJ  befnra 
Mr.  Juit.  Gould,  in  the  Courl  of  Common- 
Pleu,  in  Guildball,  Loodoa,  on  the  l)lh  of 


SSj 


U  G£OEG£  III. 


Action  for  FaUe  Imprisonment^^ 


[8i 


carrietl  from  Minorca  to  Ctnhtg^na  in  8|Mun. 
There  is  a  secviid  oouat  in  the  declaration,  for 
an  assault  and  false  iinpriitnDiii^nt,  in  which  the 
banishment  is  omilted.    These  injuries  he  lays 

July,  1773.  Coutaininijr  the  evidence  vfrAa/im 
a«  delirered  by  the  witnesses;  with  aJI  the 
speeches  and  arguments  of  the  counsel  and  of 
the  court." 

Before  the  Trial  there  was  the  following  Ad- 
dress toibe  Bookseller. 

**  I  am  Tery  glad  to  find  yon  are  going  to 
publish  the  trial  Mtween  Fahrigas  and  Blostyn, 
as  the  kuowleilge  of  the  particulars  of  this  in- 
teresting cause  must  be  worthy  the  attention 
of  the  public. 

'^  A«  1  have  passed  a  great  part  of  my  life 
in  Minorca,  and  have  some  knowiedge  of  the 
parties,  I  was  induced  from  cariosity  with  many 
others  to  attend  this  trial  at  Guildhall,  uhere  I 
was  greatly  surprised  to  hear  the  account  given 
by  governor  Moshrn's  witneKses,  Mess.  Wright 
and  Mackellar,  of  the  constitaiioo  and  furm  of 
gu vernment  of  that  island. 

"  1  did  indeed  expect  that  Mr.  Fabrigas's 
counsel  would  have  called  witnesses  to  coatra- 
dict  the  very  extraordinary  account  4bose  gen- 
tlemen bad  given,  which  they  might  easily 
have  done  by  any  persf>n  who  had  the  least 
knowledge  -  oif  thie  matter.  I  su]>pose  they 
did  not,  either  from  thinking  the  subject  im- 
material to  their  case,  or  iicrliaps  to  preserve 
to  Mr.  Serj.  Glynn  the  closure  of  the  trial  by 
that  most  eloquent  and  masterly  reply  with 
which  it  was  concluded. 

«*  Whatever  the  motives  of  Mr.  Fabrigas*s 
counsel  might  be  for  leaving  this  account  un- 
contradicted, I  think  it  very  material  that  the 
world  should  not  now  be  misled,  as  tbey  would 
be,  should  they  read  the  evidence  of  these  ^ea* 
tlemen,  and  not  he  informed  of  their  mistakes ; 
I  call  them  mistakes,  for  however  extraonlinary 
some  parts  of  their  depositions  nuiy  appear  to 
an  obMrvant  reader,  I  am  unwilling  to  charge 
them  with  any  other  crime  than  ignorance. 

**  I  am  therefore  induced  to  trouble  you  with 
this  letter,  that  ^if  not  too  late)  yon  may  pub- 
lish it  with  the  tnal ;  my  sola  object  is,  that  the 
public  may  be  apprized  of  the  misinformation 
given  by  these  geotlemm.  I  do  not  expect 
that  the  bare  oontnulkstioD  of  an  anonymous 
person  shonld  o? ensi  the  declarations  upon  oath 
of  two  gentlemen  s^veo  in  open  court.  All  I 
mean  is,  to  apprise  the  public  of  the  tnitb,  and 
to  leare  them  to  make  such  larUier  inqniry  as 
tbey  shall  think  fit.  ^     ^ 

*'  The  purport  of  that  part  of  the  evidence 

given  by  thosn  gentlemen,  wbioh  I  nwan  to 

dispnte,  was,  that  a  part  of  the  island  called 

the  arraval  of  St.  PhiiVs  is  not  under  the  juris- 

didaon  of  the  msgistrates,  nor  governed  by  the 

nm  lavs  which  prevail  in  the  rest  of  the 

****"»  ^  is  ooder  ibe  sole  autkority  of  the 

V^^in^^  and  has  no  lav  but  his  will  and 
pleasore, 

M  -!liiS^'^  *«■  ^^  ^  ^^  wrtraordiimry 
•cPMiiiiilai  as  nhisiflli iMpouMB  fi>r  a  oon- 


to  bis  damage  at  10,000/.  To  this  declaration 
the  defendant  has  pleaded.  Not  Guilty;  and 
for  further  plea,  has  admitted  the  charges  in 
the  declaration  mentioned,  but  justifies  what  he 

sideraUe  number  of  inhabitants,  in  a  country 
governed  by  law,  and  which  is  part  of  the  do- 
minions of  the  crown  of  Great  Britain,  shonld 
have  had  some  jery  urgent  and  apparent  cause 
to  make  necessary  that  slavery  which  English- 
men abhor,  and  it  it  exists,  must  have  been  es« 
tabUshed  by  some  particular  provision.  If  it 
had  been  said,  that  in  the  fort  of  St.  Phillip's, 
in  time  of  actual  siege,  an  absolute  military  go- 
vernment mnst  prevail,  the  objects  and  the  rea- 
sons could  easily  be  understood.  But  to  say 
that  in  time  of  profound  peace  not  only  the  in* 
habitanU  of  fort  Sl  Phillip's,  but  all  those  of 
the  arraval,  which  contains  a  large  tlistrict  of 
country,  with  many  hundred  inhabitants,  living 
out  of  all  reach  of  the  garrison,  should  be  sub- 
ject not  to  military  government,  for  that  has  its 
written  laws  and  forms  of  trial,  but  to  the  ab- 
solute will  of  the  governor,  without  any  law  or 
trial,  is  in  itselfso  absurd,  and  so  contradictory 
to  every  idea  of  reason,  justice,  and  the  spint 
with  which  this  country  governs  its  foreign  do- 
minions, that,  I  trust,  my  countrymen  will  not 
believe  such  a  monster  exists  in  any  part  of 
this  empire,  without  better  proof  than  the  in- 
formation of  these  gentlemen. 

**  I  would  not  have  the  reader  think  that  this 
strange  idea  originated  in  the  brain  of  Mess. 
Wright  and  Mackellar,  for  I  know  it  is  a  fa- 
vounte  point,  which  the  governor  of  Minorca 
has  endeavoured  to  establish  ;  not  so  much,  I 
believe,  for  the  pleasure  of  exercising  absolute 
authority,  as  on  account  of  some  good  pen|ni- 
sites,  which  he  enjoys,  and  which  can  be  de- 

I  fended  on  no  other  ground. 

'  «■  To  establish  this,  it  has  been  endeavoured 
to  alter  the  ancient  dislributioo  of  tbe  districts 
or  termioos  of  the  island  from  tbor  to  five. 

**  The  four  terminos  Cieutadella,  Alayor, 
Marcadal,  and  Mahon,  have  their  separate 
magistrates  and  jurisdictions,  and  comprehend 

{ the  whole  isUnd.    The  arraval  of  St.  PhilUp*o 


!  was  always  a  part  of  the  termino  of  Mahim ; 
!  in  order  therefore  to  establish  the  governor's 
'  claim,  it  became  necessary  to  set  up  the  arra- 
val of  St.  Phillip's  as  a  separate  and  distinct- 
termino.  If  this  could  he  done,  it  ceased  to  be 
within  the  jurisdiction  of  the  magistrates  of  the 
island,  who  have  power  only  in  (heir  fonr  ter- 
minos, and  accordingly  Mess.  Wright  ani 
Mackellar  advance,  that  there  are  five  terminos 
instead  of  four ;  but  those  who  are  acquainted 
with  the  island  will  know,  that  this  is  a  modem 
inventiott ;  that  in  the  records  of  the  country, 
there  is  not  the  least  fouiHlation  for  such  an 
idea ;  on  the  contrary,  that  every  proof  of  the 
reverse  exists.  The  inbabitanti  of  the  arraTnl 
are  sobject  to  the  particular  jurats  af  Mahon, 
tliey  diffvr  in  no  respect  fiiNn  the  other  mhehi- 
tanis  of  that  termino,  and  the  judges  posseei 
and  exercise  the  same  jwisdaetion  and  autho- 
rity ift  the  amral,  M  Iksj  4P  ia  the  elhsr  pacta 


t'ahrigat  e.  Moiign- 

Iv  ilmw  ^J  •II'^'OS  U'Bl  ibe  plaintiff  endea- 
— »■*  (■>  crcBW  k  iDuday  among  the  inhabi- 
\M  ot  MiiMrea,  whereupoii  ilie  Uerenilanl,  w 
r,  WM  obliged  to  leizs  tbe  phiiitifT,  In 
o^^  Mn  til  <]nji  in  prison,  and  ihen  to  Im- 
MfckiM  to  C*ntM)[ena,  ai  it  was  lawful  for 
i»  IS  do.  To  thii  plea  iLe  plaintiff  replies, 
■l»ja,UwltlMderenilaD(did  asMolt,  impri< 
■■jHd  iMilab  him  of  his  own  \rnmg,  and 
•JMBl  mn  fueli  cause  as  lie  has  aboTC  al- 
M|»<.  Mi4  tlincapon  imiui  is  Joined.  Thi«, 
Miaiauu,  h  the  nature  of  the  pleailincrs.  Mr. 
*JMt  Of  UD  will  open  to  you  the  hers  on 
"h"*  oar  4«i-larat>iiii  ia  fonnded,  and  if  we 
•opTwt  h  by  evidence,  we  shall  be  entitled  lo 
'    t,  with  aucli  ilaiuages  sa  tbe  injurj 


■ml  HI 


MiMyd 


i^Dilvnm  of  the  Jury, 
bi*  eauie  fur  the  nlaintilF.  Gentlcoien, 
t  BCtton  thnt  Mr.  ralirrgas,  ■  natice  and 
»f  the  iiland  of  Minorca,  has  brought 
tbe  defendant, Mr.  MiMtyn,  his  majesly 'a 
~  la  Ihal  islantl,  tor  nssauUing,  false  im- 
_,  Dad  baoishin^  liim  to  a  foreign  coiin- 
^mininoi  of  the  king  of  Spain.  Mr. 
bu,  in  (he  fini  place,  pl«aife<l  that  he  is 


■f  the  idand.  which  could  not  be  the  cute,  if 
tte  daia  Ml  up  bj'  (he  goternar  really  existed. 
"  Ma  nranf  wliateTer  hM  been  ui  can  he 
piJuuiidwtthis  ctaini  has  any  fnuo'iation; 
wmiminHU  Hen.  Wright  auil  MackeJIar  at- 
*Mf(  la  (rire  any  hot  tlieir  ovrn  assertions. 
7W  aal;  tltrng  thai  had  the  least  similitude  lo 
pw;  wma  Ibeir  uyiog,  that  in  one  instance 
te  dBeer  acting  as  coiouer  to  examine  a 
■tfBlhal  had  met  with  a  riolml death  in  the 
tBuii,  aaked  the  guttrnor'a  ItaTe  before  he 


'TbMfBCl  I  do  not  pretend  to  dispute;  il 
[■af  wadiing ;  and  waseridentlyonly  a  mark 
«f  iii|it*l.  which  It  is  no  wonder  n>agisirste« 
ii  Am  Maad  pay  l«  a  iforeroor  who  realty  hai 
•i«Mh  power.  Dm  to  have  made  lht«  amount 
•«  Mjt  (hinf;  like  proof,  it  should  hare  been 
*W««,  thai  tbe  like  aiiention  was  not  paid  to 
Ibt  fvrtTaor  at  Hahon,  and  io  other  part*  of 
ik(  MbiML  Tbe  imtb  is,  that  the  inhabitants 
an  ••  JepomlaDl  an  tbe  raililar^,  that  1  ba*e 
Imwm  tbe  tame  civility  shewn  m  another  part 
«f  A«  JelenJ  t«  the  oflii-er  who  happened  to 
eMMMiard  titcre,  but  certainly  without  any  in- 
-^— ''■'-- —  ttt  him  their  authority 


■«:"; 


as.    Wriglil  ami   Mackellar  also  said, 
1  tba  Mianrqniua  claimed   lu  be  ifoterned 

K*  tfpSMiah  laws,  as  auiicd  beat  for  the  mo- 
«m  ;  but  ■nunualed  that  the  Spanish  laws 
frsia4wl,  anil  that  by  them  the  governor  had 
a  1^1  ky  hta  aolp  auiboriiy  to  baniih. 

"  Tb«  fact  moit  undoubtedly  is,  thai  Mi- 
•■a,  a  CDmiurrrd  country,  preserves  its  an- 
IBBI  ftbe  ^fpMiiib)  laws,  mi  the  cuiiquemr 
'•■MMpT*  tbrm  uttisn;  and  iherefare  as 


A.  D.  1779.  [80 

not  guilty  of  those  injuries ;  in  the  next,  he  ha* 
offered  this  justification  for  himsi-lf*,  that  tiie 
plaintiff,  Mr,  Fabrigas,  was  guilty  of  practices 
tending  to  sedition,  anil  that  Mr.  MiKtyn,  liir 
iich   miahehavjonr,  by  bis  sole  aulborily  i 


cIvBiion,  complains  of  as  a  grievniire.  This 
Mr.  Mostyn  takes  npon  him  to  insist,  in  an 
Gaijlish  court  of  jusiine,  is  the  Jasllliable  ex- 
ercise of  an  authority  derived  from  the  crown 
of  Eaffland.  And  Ibe  facia  which  he  under- 
lakes  llius  10 Justify,  are,  in  the  first  place,  a 
length  of  severe  imprisooroent  npon  a  nativeaf 
the  island  of  Minorca,  a  Euhje[:t  of  Great  Bri- 
tain, liiing  under  the  protectinn  i>f  the  BngUsh 


id,  secondly,  by  las  sole  authority, 
vriiiioin  ine  Interteniion  of  any  Judicature,  the 
■ending  him  into  e>:ile  inip  the  dominions  of  a 
foreigD  prince.  Gentlemen,  some  observations 
must  strike  you  upon  the  very  slate  nf  ihis 
plea ;  they  muil  alarm  yon,  and  you  must  be 
anxious  to  kuotv  the  particulars  of'^tliat  cise,  li> 
irhich,  in  Ihe  sense  of  any  man  who  has  re- 
ceived faia  edncalioti  in  this  cuunlry,  or  ever 
cotiveraed  with  £uo^lisbmen,  il  can  be  applied 
BS  jiistificaiioQ ;  Iiiat  t»se,  Iherelbre,  I  will 
ahoi'llj  state  tn  yon  : — Mr.  Pabrigaa  is  a  gen- 
tleman of  the  island  of  Minorca,  of  as  ^ood  a 
noDiIiiioD  as  any  inhabitant  of  Ihal  islaan,  of  as 
fair  and  unblemished  a  character  too  as  that 
island  produces.     It  la  however  enough,  for  . 


England  has  not  given  Ihem  others,  it  ia  true 
the  Spaniub  law.t  do  prevail  in  Minorca,  both  in 
civil  and  criminal  mailers,  among  ihemietves  : 
but  it  is  eqaallr  trne  thai  Ihey  have  the  pro- 
tection of  llie  English  laws  agaioit  ihcir  go- 
vernor, who  cannot  be  amenable  to  Iheir  local 
lawn,  and  llial  however  despoiicully  a  Spanmh 
governor  may  formerly  haveacti'd,  it  can  not 
be  Ihe  law  of  Spain,  or  of  any  couiiiry  (lietanse 
t  is  contrary  to  natural  juotii-c)  thai  a  inaa 
iIkiuIiI  he  coiiilemneil  and  punished  without 
:lther  trial  or  hearing, 

■'  It  would  have  been  easy  for  governor 
Mnstyn,  if  Mr.  Fabrigas  bail  commitieil  » 
crime,  to  have  Inltoweolhe  mode  of  proceed- 
ing eslabtiahe'l  there  in  criminal  cases,  which 
is  for  llie  advocate  fiscal  to  prosecuie  in  the 
I  of  royal  gnternmenl,  where  ihe  chief 
Jurtice  criminal  ii  the  judge. 

•'  If  I  was  nut  nfroid  of  swelling  this  letter 
loo  great  a  length,  1  should  make  more  re- 
irksouwhat  passed  at  this  triiil,  and  point 
I  many  more  iustances  of  power  niijnaunolily 
luineil  by  Ihe  governun.     But  I  iuipe  llinl 
what  appears  from  this  publication  wdl  be  suf- 
Acienl  to  imlucc  administratioa  lo  consider  the 
sUte  itt  this  i-land,  and  give  the  mhtUntauls 
wime  better  security  for  the  stfeljy  of  their  per- 
sons, and  eiyoymenl  of  their  property  j  lor. 
rxclusiie  of  Ihe  meanness  ibere  is  in  ill  using 
Ihose  who  cannol  t«oiitt.  it  is  umloubiedty  Ihe 
best  piilicy,  for  Ihe  honour  aud  siiibihly  of  our 
empire,  I'u  tiinke  all  it)  depeniJeociea  bajipt ." 
ftrmrr  JErfilwn. 


87] 


U  GEORGE  III. 


Aatumjir  Fake  Imprisonment--' 


[88 


this  present  purpose,  to  say  that  Mr.  Fabrigas 
18  a  descendant  of  the  anlient  inhabitants  of 
Minorca :  that  he  li?ed  there  under  the  capitu- 
lated rights :  that,  as  such,  the  national  faith  was 
pledged  for  his  enjoyment  of  those  rights  that  his 
ancestors  capitulated  for;  but  what  is  of  niore 
consideration,  being  born  in  Minorca  since  its 
•ttbjection  to  the  crown  of  England,  he  was  a 
free-born  subject  of  Enp^land,  and  claimed,  as 
his  birth -right,  the  privileges  due  to  that  cha* 
racter,  and  the  protection  of  the  English  laws. 
There  was  a  particular  stipulation  upon  the 
surrender  of  the  island,  that  every  occupier  or 
possessor  of  land  should  be  intitled,  under  cer- 
tain regulations  and  restrictions,  to  the  produce 
of  his  lands,  and  to  such  profit  as  by  his  in- 
dustry he  could  make  of  them.  Upon  that 
p;round  a  dispute  arose,  to  which  alone  can  be 
imputed  the  displeasure  of  Mr.  Mostyn  to- 
wards the  plaintiff,  and  the  treatment  ne  re- 
ceived from  him,  in  the  progress  of  it.  Mr. 
Mostyn,  as  governor,  was  appealed  to,  and  bis 
good-nature  appeared  to  be  so  serviceable  to 
the  adversary  of  Mr.  Fabrigas,  that  early  in 
the  morning  Mr.  Fabrigas  was  suddenly  taken 
from  his  house  by  a  file  of  soldiers,  and  by 
them  conducted  to  a  dungeon,  unaccused,  un- 
tried, unconvicted.  Thus,  without  any  form 
of  judicial  proceedings,  this  gentleman,  who 
then  lived  in  esteem  in  the  island,  finds  him- 
self all  of  a  sudden  committed  to  a  dungeon,  a 
dungeon  that  was  made  use  of  only  for  the 
roost  dangerous  malefactors,  and  that  only 
when  they  were  ready  to  receive  the  last  of 
punishments.  In  this  gloomy,  damp,  dismal, 
and  horrid  dungeon,  was  this  man  detained 
without  anj^  previous  accusation,  without  any 
call  upon  him  to  make  his  defence,  or  being 
informed  there  was  any  crime  or  offence  that 
was  alledged  against  nim,  and  without  any 
notice  either  to  him  or  his  family.  When  he 
found  himself  in  prison,  there  was  humanity 
enough  in  the  breast  of  the  keeper  of  that  pri- 
son to  accommodate  him  with  a  bed ;  but  it 
seems  that  accommodation  was  bv  the  power 
of  that  island  thought  too  much  for  him,  and 
the  bed  was  taken  from  bim ;  a  check  was 
given  to  the  lenity  of  the  keeper.  No  notice 
having  been  given  to  his  family  that  they 
might  visit  or  administer  comfort  to  him  ;  he 
did,  by  humble  request,  desire  that  his  wife 
might  be  permitted  to  visit  bim :  that  consola- 
tion too  Has  denied  him.  In  this  manner  was 
Mr.  Fabrigas  deprived  of  bis  liberty  for  a  con- 
•iderable  time.  It  is  unnecessary  for  me  to 
state  particularly  the  precise  time  that  this 
imprisonment  continued ;  that  you  will  hear 
from  the  witnesses.  Nor  does  a  case  like  this 
depend  upon  minutes,  hours,  or  days,  but  this 
is  the  nature  and  kind  of  imprisonment  that 
Mr.  Fabrigas  endured :  so  closely  watched 
that  no  man  could  have  access  to  him,  deprived 
of  the  consolation  of  his  family,  severed  from 
all  communication  with  his  friends,  relations,  or 
acquaintance,  that  could  administer  the  least 
comfort  to  him.  For  several  days  did  this  man 
Aontinue  under  thii  impiiaoDiiiciity  oor  did  hit 


iufierings  determine  with  it ;  his  removal  from 
the  dungeon  was  only  a  substitute  of  one  spe- 
cies of  cruelty  in  the  place  off  another :  for  the 
instant  he  was  taken  from  prison,  he  was  car- 
ried by  the  same  arbitrary  and  despotic  power 
on  board  a  ship,  without  any  previous  notice, 
without  any  time  allowed  him  to  prepare  for 
his  departure,  without  the  ordinary  visit  or 
comfort  of  friends  and  acquaintance,  from 
whom  he  was  probabl v  to  lie  se|>arated  for  ever. 
Thus  was  this  man  taken  from  his  native  coun- 
try, and  the  insupportalde  hardships  of  a  dun- 
geon were  followed  by  an  entire  expulsion  from 
his  country,  and  every  thing  that  was  dear  to 
him :  he  was  sent  instantly  on  board  a  ship  by 
force,  and  carried  to  Carthagena,  a  foreign 
country,  under  the  dominion  of  the  crown  of 
Spain.  This  is  the  nature  of  Mr.  Fabrigas't 
case.  Now,  gentlemen,  for  a  moment,  let  me 
remind  you  of  the  pretence  under  which  this 
imprisonment  is  inflicted.  It  is  said  Mr.  Fa- 
brigas excited  sedition,  or  attempted  to  excite 
sedition  ;  that  he  acted  or  spoke  in  a  turbulenc 
and  mutinous  manner ;  and  therefore  that  the 
governor,  as  his  plea  states  he  was  well  autho- 
rized to  do,  committed  him  to  prison,  and 
banished  him  out  of  the  island ;  or  rather  com- 
mitted him  to  prison  for  the  purpose  of  baniah- 
ing  him  out  of  the  island,  for  I  believe  that  is 
the  true  state  of  his  plea.  Gentlemen,  you 
would  justly  accuse  me  of  a  great  and  wanton 
waste  of  your  time,  if  I  should  say  a  great  deal 
for  the  purpose  of  exculpating  Air.  Fabrigas 
from  the  charge  and  imputation  that  is  thrown 
upon  him  in  this  place,  because  I  am  persuaded 
that  you,  an  English  jury,  if  you  were  silting 
in  judicature  upon  the  case  of^  confessedly  the 
vilest  of  offenders,  you  would  not  suffer  the 
atrocity  of  the  offence  to  mitigate  that  censure 
and  animadversion  which  is  due  to  a  behaviour 
like  this  of  the  governor's.  In  private  justice 
to  the  character  of  Mr.  Fabrigas,  and  not  as  the 
least  relating  to  any  question  here  to  be  tried, 
gentlemen,  I  will  sUte  to  you  upon  what 
grounds  and  pretence  this  mutiny  is  alleged 
against  Mr.  Fabrigas.  Mr.  Fabrigas,  as  I  have 
told  you,  claimed,  among  all  the  other  inhabi- 
tants and  possessors  of  lands  in  the  island,  a 
right  of  seUiog  the  produce  of  his  lands,  under 
certain  restrictions.  The  proiluce  of  the  lands 
is  chiefly  wine :  Mr.  Fabngas  had  a  consider- 
able quantity.  His  msjesty,  by  his  proclama* 
tion,  bad  given  free  liberty  to  the  inhabitants 
of  that  part  of  the  island  where  Mr.  Fabrigas 
lived,  to  sell  their  wines,  the  price  being  first 
settled  by  the  authority  of  the  governor : — that 
price  is  called  the  aflloration  price.  Notwith- 
standing bis  majesty's  proclamation,  by  an  act 
and  order,  not  of  governor  Mostyn,  but  of  hit 
lieutenant-governor,  there  was  a  pruliibition 
that  no  wine  should  be  sold  without  the  imme- 
diate authority  of  the  mustastaph.  An  appli- 
cation therefore,  by  Mr.  Fabrigas,  was  made 
to  this  officer,  either  to  permit  him  to  sell  his 
wines  under  the  afforation  price,  which  would 
be  for  the  general  reUef  and  benefit  of  the 
islandeny  um  of  the  giniaoDy  or  that  he  him* 


Fabrigoi  v.  Mosli/n. 

)rlt«l  a  fixed  price.  Tliit  nfficer 
■^ly  with  eiiber:  Mr.  Fobri^B 
o  Ihe  necessity  iil"  inak- 
k^pplicAliun  lo  gureroor  Slostyn, 
u  llii*  tllernittiTe,  either  to  sell  Ills 
vjiimitrr  ■  oerUio  atlurxioD  and  ngulalfd 
pr-,  or  tiial  Ihe  KuteiiimeaL  Would  buy  his 
■«(  of  him  for  llieir  use,  or  the  ube  of  Ihe  car- 
i.nu  Ttiis  (>etilion  hds  thought  reasonable  al 
tit,  and  had  a  kind  ansttfr;  it  was  received, 
aM  4  a|i|ivir*  Id  hate  been  takeo  JDlo  ciinsi- 
Antnp,  but  Duibing-  vts  doae  in  canwqiience 
•fn.  JUr.  Fahngas  iherefore  repeals  his  a[i- 
^icaliua.  and  he  irceivei  kdcou  rare  men  t  lu 
iifvcltbal  tlie  reason  able  nesa  oi'  hia  petilion 
■voU  be  taken  inlo  consideralian,  aod  ibal  he 
■kaahl  be  at  hbvrlj  to  aell  Ibe  utoduce  of  his 
imA  But,  iftnliemeo,  at  last  LbU  auRner  was 
Ciien  lo  tit.  Fabrics:  ibat  il'  it  ajiiieartil  to 
k  lb*  Mine  of  a  ciinsideruble  nuDiber  of  ibe 
lababiUnla  ikf  itie  jjlaiid,  ibalil  was  fur  ihtHr 
kinffti  ihal  aiich  |iei  roinkioii  should  be  gitrn, 
hn  apfilMVUioo  iboiild  be  tumplied  wiih.  Mr. 
i-~iAn|ia<  Ibea  prepares  BOcli  a  (letilioa;  be  kfels 
il«i;*nl,  and  he  prt«eots  il  in  ^Ternor  Moiiyn. 
Naw,  gaDtlamen,  berc  it  is  impassible  lo  stale 
«tal  |uaac4  between  llie  parties.  It'  it  can  be 
|WHn4Bd  Uial  tlierewaa  any  Ibing  mutinous, 

|«M«eibat  petnion  will  be  proiluced  to  you, 
aad  il  ■ill  ajwak  Inr  ilaell';  but  some  iadigns- 
Ma  iraa  cniK«i'ed  liy  soternor  Moalyn  against 
tic  idainliir,  Mr.  rabrii;aa,  which  protluced 
llM  abMige,  unaccouDtable,  unwarrantable, 
•■lalamia^  euuduci,  which  we  now,  by  evi- 
Wcr,  impuie  lo  Mr,  Hnstyn.  For  );entle- 
■a,  iMtaatly  npoo  ibii,  Itlr.  Fabriifai  is  cun- 
'■oelia  iha  oianner  Iwlure-meuli'ined  lo  thai 


MWri  ta  5*1),  till  he  was  hurried  ou  board  « 

rtif,  svl  •>•■  conveyed  lo  Cartlia^^cnn  in  ^(jaiu. 

Bna^   hr  lb«  flrn  time,   he  rvcrirea  iuielli- 

fOM  iif  what  was  the  proiocaiion  that  he 

pta,  wbat  waa  the  ([round  ul'  auth  Ireatmeal 

■<  hi*a,  wbil  cliari;*  waa  imputed  in  bim,  by 

■hai  aallfotity  be  was  so  ilfiaiued   and  so 

Inxtrf:  tut  here  a|i[iean  ■  Itlier  under  the 

iaai  «r  (vtenwt  Bloslyn,  sviwing  Ibis  acl, 

aa4  Mtiaff  bim  ihil  be  tlionttbt  ii  neces«8rv 

ui  mif^taA,  fur  the  (lunishmeol  of  his  ut- 

'  -jrx,  b>  aend  bim  into  exile,  and  lo  direct  bim 

1*  oua*r_«ed  tu  Cnrtliatjeaa  in  Spain,     Here 

'■jiott  find  lliegiTeruoraToiriu^; Ihe  whole; 

.  1  jT  be  did  nni  alow  ilic  H  hole,  you  muld 

11  c  OB  ilouU  ander  what  antburity  these  tlilnits 

-e  4tMi*i  liMaiiae  you  will  hear  from  all, 

•I  tb«y  caiuiot  W  douc  but  under  thenulho- 

I  of  ifac  iforcrnor.     Then,  (•enilenien,  Ihe 

V'uMnmox,  and  ihe  aeoding  Ibis  man  inlo 

. i^.  arc  lh«  act*  ot  i;overoiir  Hostyn.    The 

i-DMHiinrwl  tinilrr  such  attanee  sg^iravaling 

•i-umtUtitvt  of  hurror  aiid  ignomiuy,  and  the 

■-•^■■•c  b«ia  witliuul  nnliee,  without  tliue  for 

p^nswan,  wiihii"!  K>*ii>K  1>'»>  )be  opporlu- 

h;  af  payiof  (lie  'eul  alleiiiion  to  the  oaii- 

'  '        ieuiiraiiiily,ioioezile;  Ibete, 


A.  D.  1775. 


[00 


gentlemeD.  we  now  presume  lo  treat  a«  the 
aeis  uf  Koiernnr  Hosiyn ;  and  llie  KOTernor 
sa^s,  he  is  justified  in  >u  doinjf,  as  ^nterupT  of 
Minorca.  I  should  be  glad  lo  know  upua  »hal 
idea  of  justice  llie  ^of  emur  i{rniiti(ls  thai  pre- 
Irnce.  1  conceive,  ihsl  in  this  ease,  there  cao- 
uol  he  the  least  colour  or  pretence  of  aay  judi- 
cial examinalion,  or  the  least  liirm  ot  judicial 
prDceeiling:s.  GoTeruor  Moslyn,  alter  liBTinff 
iieen  guilty  of  ibis  ouirnse  ID  Ibe  plaintiff, 
would  bare  acted  luuoh  belter,  if  be  had  not 
added  this  insult  to  the  laws  ot  his  couoiry,  by 
asaumiog  an  autbnrily  iuciinipatibli:  with  the 
least  possible  idea  of  justice  that  can  bevnler- 
tained  in  tliis  or  in  any  couDlry  wliauoeter. 
Genilemeo,  if  goveruiir  iVloslyii  complsini  that 
Justice  is  not  done  lu  bis  defence  by  his  |4ea. 
ibat  he  is  fettered  and  eniharrosaed  by  it,  and 
cnuld  now  justily  his  conduct  upon  belter 
grounda,  we  will  freely  giie  him  the  oppertu- 
iiity  of  doing  it ;  he  cball  rio  il  m  h  bat  clia- 
racler  be  ihiiiks  proper.  If  he  has  acted  uuder 
ibe  ci •lour  of  any  judicial  proceeilings  in  civil 
Judicslure,  Ut  those  proceediii|fs  be  pruducrd. 
let  liim  desert  and  abBDdonlheslisinelulpleailiBl 
he  has  presented ;  he  has  even  our  tibrrly  lo  do 
it.  If  the  goveruor  means  lo  be  ju»tilied  in  his 
inililarv  character,  I  need  not  itll  you.  genlle- 
iiien,  that  it  is  necessary  in  that  cboracler,  that 
there  shonld  be  judicial  proceedings  bkewiie 
of  a  military  court  of  justice.  I  will  be  bold 
to  aay,  that  the  idea  govenior  Moslyn  haa 
adopted,  that  the  liies,  fortunes,  and  being  of 
Ibe  iuhaliiiants  of  the  island  of  Minorca  are  at 
Ills  mercy,  and  that  by  bis  sole  autliotily  be 
CDD  inflict  bonds  and  imprisonment  on  any 
inhabilRDt  nf  that  island,  is  the  single  idea  of 
governor  Moslyn;  and  I  say  the  Kovernor 
dues  nut,  in  this  case,  latk  like  a  miliinry  man, 
fur  his  ideas  are  as  foreign  to  ihe  uotioi>i  uf  a 
snldier,  as  of  a  lawyer.  Gi'ntlemen.  this  is 
the  nature  of  the  case  that  we  shall  oiTiv  to 
ynu,  and  which  we  sliall  pruiluce  in  proof  lo 
you  against  gucerour  Moslyn;  an  imprison- 
ment, if  il  bad  been  attended  with  all  Ihe  cir- 
cumstances of  cumlort  lliut  cnatd  have  been 


idmin 


1  that  si 


pretence  of 
legal  authority,  sufScieut  to  entitle  this  gentle* 
man  lo  call  lor  considerable  damages  from  a 
verdict  of  a  jury  :  a  baiiishnieni  inlo  a  fureiga 
(Muntry  of  a  suuject  of  England,  inlllled  lolte 
protected,  to  whom  the  laws  caniiol  lie  denied 
without  breach  of  public  faith,  and  a  dan- 
gerous wound  to  the  general  system  of  our 
I'uoslitulinoal  lilierlies.  Thus,  by  Ibe  sole  au- 
lliority  of  governor  Moslyu,  williout  pretence 
of  judicial  Fxaininalinn,  was  Mr.  Fahrigas  sent 
inlo  bsaisboiKDi.  If  all  other  circumiiancei 
were  away,  llie  being  sent  out  uf  his  native 
coimtry  by  an  arbitiary  act  of  ihe  gnvenior  of 
that  island,  is  surely  grouud  enough  to  call  fur 
the  rooHi  considerable  daiiisges.  Hut,  gentle- 
men, you  are  lo  add  to  il  every  circuinstancfl 
of  discoiiiforl.  He  wai,  during  the  whole 
lime  of  his  imiirisomneni,  kept  in  a  gloomj 
dungvoo  i  uo  circumitaucB  of  ignoraipy  ibat 


14  GEORGE  III. 


91] 

cavAi  iffiedt  the  mind  of  m  ntfii  of  ftelin|f  was 
omitted :  be  wtm  put  into  a  place  set  apart  and 
deaif^ned  only  for  the  reception  of  tbo  wont  of 
maieiactora,  secluded  from  any  conversation  or 
oomannnication  with  his  frienda  or  acquaiDt- 
•nce,  his  neareat  relations,  his  wife  or  bis  fa- 
mily, deprived  of  the  comfort  of  a  bed,  and 
oblif(ed,  for  a  conaiderable  number  of  days,  to 
•uhsist  upon  bread  and  water.  This  is  a  caae 
of  the  must  unparalleled  cruelty ;  the  moat  in* 
geniona  circumstances  of  torture  beioff  added 
to  the  moat  unjustifiable  and  the  most  lawless 
eiertion  of  authority,  that  I  am  persuaded  has 
ever  appeared  before  any  court.  If  i^rernor 
•  Mofttyu  can  support  the  |>oweni  of  this  claim, 
•od   vindicate  himself,  aa  governor,  by  the 

Slenitude  of  his  powers,  and  that  the  sole  ju- 
icaiure  of  the  inland  residea  in  his  person  ; 
if  it  was  lor  a  moment  possible  for  you  to  en- 
tertain the  idea  of  the  lejilfality  of  such  a  power 
beinif  placed  in  anv  man,  in  consequence  of  an 
authority  derived  from  the  crown  of  Eoii^and  : 
1  aay,  it  it  was  possifaje  for  you  to  conceive  that 
Buch  a  power  could  exist ;  try  him  even  by  that 
rule,  try  him  by  that  rule,  and  he  ia  without 
ezcuric ;  for  the  most  des|iotic,  the  most  arbi- 
trary and  uncontroutabte  power  thai  is  ever  ex- 
ercised, profesaeth  at  least  to  act  by  caliin^if 
opoa  the  party  accused  to  make  his  defence, 
«nd   I  Mieve  in  no  part  of  the  globe  is  it 
looked  upon  as  just  to  condemn  a  man  un- 
heard.   Let  general  Most3'n  travel  into  Asia,  or 
visit  his  neighbours  on  the  continent  of  Bar- 
bery, he  will  not  And  examples  there  to  justify 
his  conduct,  in  any  of  the  powers  assumed,  or 
in  the  use  be  has  made  of  them :  for  if  their 
powers  are  not  circumscribed  or  restrained  by 
any  lawH;  if  they  act,  as  the  general  professes 
he  has  a  right  to,  by  their  aote  will  and  plea- 
sure ;  if  that  ia  the  rule  of  their  government, 
yet  atill  there  is  an  idea  of  a  principle  of  na- 
tural justice  that  should  govern  their  proceed- 
ings there ;  at  least  an  appearance  of  it  tliey 
•re  anxious  to  produce.     1  never  lieard  in  my 
life  that  it  waa  the  avowed  privilege  of  any 
country,  that  a  man  should  be  charged  with 
mn  offence,  that  he  received  the  punishment 
for  that  offence,  without  tbe  offence  being  ex- 
plained and  stated  to  him,  and  an  opportimity 
5iven  him  of  hearing  the  charge  and  the  evi- 
ence  by  which  it  was  produced ;  but  this  is 
the  case  of  a  transaction  in  the  dark,  a  secret 
indignation  conceived,  that  indignation  imme- 
diately folknved  by  the  most  horrid  exertiona  of 
power  upon  the  person  of  Mr.  Fabrigas— com- 
mitted to  a  dungeon,  and  unapprised  of  the 
charge  against  him  till  sent  onl  of  his  native 
country,  and  upon  the  voyage  to  the  destined 
place  of  his  banishment.    The  offer  made  to 
general  Nostvn  not  to  tie  him  down  merely  to 
the  justification  specified  in  his  plea,  but  to  give 
him  leave  to  offer  any  justifi<»tiou  that  may 
be  consistent  with  the  idea  of  civil  or  military 
justice,  may  be  called   iosidioiUf  because  I 
must  disbelieve  every  thing  suggested  on  aiiy 
trust,  if  I  think  the  offer  can  be  of  no  beseflt 
to  him  if  wanted  i  but  it  naj  he  added  to  il| 


Aeiknjbr  False  Imprisonment'^  ^  |]99 

*«  Governor,  take  yonr  ideas  of  law  frem  B«r- 
bary  or  Torkey,  prsduoe  yomr  precedent,  India 
or  negro  law,  yen  are  still  mable  to  justify 
yiiur  conduct.*'  Gentlemen,  these  are  the 
circunastaocea  we  are  to  lay  before  you  in  evi- 
dence. The  governor  may,  if  he  pleaaes,  eo* 
deavour  to  chaige  tbia  gentleman  with  motinj. 
If  be  does,  1  presume  he  will  adduce  his  proof 
of  it.  But  if  it  was  possilile  to  decide  that  Mr. 
Fabrigas  waa  a  mutinous  man,  though  tbe  re- 
verse of  that  character  is  but  justice  to  him  ; 
nay,  if  yon  conki  decide  that  he  was  tbe  worst 
and  roost  dangerous  of  offenders,  governor 
Mosty  n's  conduct  is  still  dt'stitute  of  any  colour 
of  justice  or  law.  His  conduct  is  totally  un- 
warrantable, and  the  phHeuco  he  baa  here  eet 
upi  that  he  ia  a  prince  with  a  power  unbounded 
and  unlimited  by  any  nile  or  law  whatsoever« 
that  he  is  authorized  to  act  by  his  own  will  and 
pleasure,  must  represent  this  case  in  so  alarm* 
ing  a  light  to  you,  that  1  am  persuaded  that 
you,  who  have  taken  your  ideaa  of  law  and 
justice  from  conversation  with  Englishmen, 
and  obseiTation  on  the  English  constitution, 
will  give  all  attention  to  the  particular  auffer- 
ings  of  the  roan,  aa  well  as  to  what  you  owe 
to  yourselves,  your  country  and  posterity ;  and 
we  trust,  even  in  the  very  best  conatructioo 
that  is  |)ossible  to  put  on  governor  Moatyo'a 
conduct,  that  you  will  think  the  danaagea  laid 
in  tbe  declaration  are  not  extravagant. 


Basil  Cunningham  sworn. 
Examined  by  Mr.  Lie. 

Mr.  Lee.  Yon  are  in  aonie  military  oi* 
parity  ?-^Cnnningham.  Yes. 

Wert  you  in  the  year  1771  in  the  island 
of  Minorca  ^— Yes. 

In  what  character  ? — Acting  aerjeant  majar 
for  the  royal  artillery. 

Do  you  remember  Mr.  Anthonui  Fabrigaa 
being  at  Minorca  ? — Yes. 

Were  you  serjeaot  major  at  the  time  he  waa 
aeized  and  taken  into  custody  f— 1  waa,  when 
I  saw  him  brought  into  prison. 

Do  yon  recollect  any  orders  at  that  time 
coming  in  any  body's  name  touching  his  oon* 
linement  f — ^There  waa  a  general  order  given 
us,  that  three  more  men  should  be  added  to 
the  artillery  guard. 

Couri.  Have  you  that  order?-— il.  Mo. 

Q.  Waa  it  not  your  office  aa  aerjeant  major 
to  trauaeribe  that  order  into  your  book  P — A,  I 
fifave  that  order  out  in  the  company's  enlair 
book. 

To  whom  does  the  custody  of  that  order 
book  belooir  ?— When  the  books  are  writtefi 
out,  they  give  them  to  the  captain  to  whom 
they  belong. 

They  put  three  additional  men  sentry  npoii 
that  occasion  ?^* Yes. 

Court.  Why?— il.  To  do  duly  upon  th# 
prisoner  Mr.  Abrivas.  ' 

How  long  had  Mr.  Fabrigas  been  in  cna- 
tody  at  that  time  when  this  order  was  gives 
ontP  Was  it  immediately  uDon  his  coming  into 
aaMdyy  or  after  ha  had  been  put  thereP— 


W] 


F^brigai.^  M^ifn. 


A.  D.  1775. 


(M 


T«  Um  Wil  •f  my  Tfcollection,  I  believe  about 
tmm/LyUmt  boura  after  .lie  bad  beeo  in  cat- 
ti45««r  the  evening  of  tbe  same  day ;  I  ean- 
BOlbteerUiQ  as  to  that. 

YfiaaB  teU  us  what  arMOo  it  was  tbat  Mr. 
Fikqpis  ivma  comsBitted  to? — A,  He  vraa  put 
iabpoaaq  No.  1. 

Ilbaiis  tWe  gcDenl  use  of  tbat  prison  P  to 
sM  ii  it  appl£d  P— All  tbe  prisoiiers  that  are 
fwkj  of  capital  offences,  or  for  desertioD,  we 
onMaly  pyi  io  Ibere. 

Davoa  recellect  any  circumstances  attend- 
■V  w.  Fabrigat's  imprisonnoent  P  mention 
asy  tbat  occur  to  you.  I>o  you  recollect  the 
awmer  in  whiob  be  was  brouff  bt  or  confined  P 
-«To  llie'  best  of  my  recollection  he  was 
hissfbt  by  a  party  of  soldiers,  whether  of 
tbe  &tb  regiment  or  the  6th,  I  can't  say  ;  he 
'it  in  haadoafied,  I  think,  but  am 


Bsw  \om%  was  be  confined  there  P — As  near 

as  1  can  racoUect,  shoot  five  or  six  days. 

la  tbat  prison  P — Yes. 

Dang  ys  confioesBent  there,  can  too  tell 

Ibecamt  or  jury  whether  he  was  permitted  to 

kt  visietf  bv  lua  wife  or  fsmHy  P_No :  the 

had  Ciders  that  bo  should  have  no 

witb  any  body  but  tbe  prevost 


I>s  yon  know  of  any  orders  that  he  should 
an  ba  sooB  byl  by  tbo  jirevost  marshal  P— The 
WBlry  informed  me  that  was  his  orders ;  be- 
■rifl^  it  w  fmk  into  tbe  general  orders  too. 

ioi.  Dmoy*  If  yon  mean  to  affect  the  defeo- 
dmt  witb  tbitf,  yon  abould  produce  the  order. 

Mr.  I^e.  Well  then,  we  shall  produce  it. 

(L  IniKSk,  4m  jim  know  whether  any  body 
w  nmitted  to  visit  him  hut  this  prevost  mar- 
^balr— i.  I  doo^knowof  aojy ;  if  they  did,  it 


■sisairary  t^ordera. 

Ai jan  know  if  any  body  applied  to  see 
biiaP— His  wife  applied  to  see  him,  but  was 


Jited,aal 


informed. 


What  is  this,  prevast  marshal  P — One  that 
hm  tba  chm^ipa  of.  all  prisoners  tbat  are  con- 
fasdlar  capital  crimes;   be  has  the  keys  of 


Islbiaaa  esneatioDer  too^  as  well  as  a  gaoler  P 


-Ne. 


Can  yoQ  lell  os  the  cause  for  which  this  geo- 
oooMMtlsd — tbe  occasion  of  it  P— I 


Do  yon  know  what  Mr.  Fabrigas  is  P — He 

aaa  mbabitant  of  the  island  of  Minorca. 

A  native? — Yes:  a  Minorquio. 

Do  you  know  whether  Mr.  Fabrigas  \b  a 

■an  of  any  property,  or  was  a  grower  of  any 

upon  that  island  P    I>o  you  know  in  what 

bo  lited  ?-*(le  lived  like  a  gentleman 


Were  you  acquainted  with  any  disputes 
^•sthing  bis  liberty  to  sell  his  wine  P — 1  know 
Mibiog  at  all  of  it. 

IH  you  know  any  thing  of  what  happened 
^  ban  aAer  bis  contkiemeot  in  this  prison  P 
*te  breame  of  bin  after  f— 'He  was  sent  out 
if  tbe  island. 

ft 


Do  yoa  know  of  your  own  knowledge  P^- - 
I  did  not  see  bim  taken  away. 

Do  yoli  know  of  any  orders  touching  his' 
being  sent  P — 1  did  not  see  any  orders. 

You  being  at  8t.  Phillip's  at  this  tine,  when 
be  was  in  prison,  you  can  tell  us  whether  he  wa» 
tried  for  any  ofi^ioe  previous  to  bis  commit- 
meat  there,  or  after  P — No :  be  was  not  tried. 

Crott-examioation  by  Serj.  JDavy. 

How  long  bad  you  known  this  Fabrigas  be* 
fore  the  time  of  bis  being  brought  to  ^lis  pri-' 
son  P — I  had  seen  him  different  times,  being  in 
the  island  for  between  eight  and  nine  years. 

I  wish  to  know  in  the  first  place  whether  ho, 
was  a  quiet  subject,  or  otherwise?— I  never 
heani  any  thing  to  the  contrary. 

What  P  but  that  be  was  a  quiet,  inoffensive 
subject  P — I  never  heard  to  the  contrary. 

Ho  was  looked  upon  as  a  very  good  friend 
to  the  garrison,  I  believe  P — I  really  can't  tell 
what  he  was;  he  was  an  inhabitant  of  the 
island.  I  don't  know  tbat  ever  I  spoke  to  bim 
in  my  life. 

What  part  of  the  island  did  ho  live  in  P — At ' 
St.  Phillip's. 

There  it  was  he  was  imprisoned,  I  presuoM  P 
— Yes :  he  was  brought  a  prisoner  to  8t.  Phil-  . 
lip's  castle. 

I  think  you  say  yon  have  been  in  the  island 
fire  years  P — Almost  nine  years. 

Then  you  were  there  before  Mr.  Mosty n  was 
appointed  governor  P — Yes. 

You  were  there  in  governor  Johnston's' time  P 
—Yes. 

Were  you  there  in  governor  Blakeney'a 
time  P— No. 

JofRfs  l^Deedie  sworn. 

Examined  by  Mr.  Grou, 

What  were  yon  in  the  year  1771  ?— A  cor- 
poral in  the  royal  artillery  in  the  island  of  Mi- 
norca. 

Did  you  see  the  plaintiff  hroujyrht  to  the 
casileP — No:  1  did  not  Ree  him  brought;  I 
was  a  Serjeant  of  the  guards  when  be  was  de- 
livered up  to  me,  from  the  61st  regiment. 

Court,  Can  you  recollect  tbe  time  P — A,  No ; 
it  was  some  time  about  the  middle  of  Septem- 
ber, to  the  best  of  my  knowledge,  in  the  year 
1771. 

In  what  way  was  he  delivered? — He  was 
delivered  to  me  in  the  prison  N®  1. 

What  were  the  particulars  of  that  delivery 
to  you?  in  what  way  was  he  delivered? — Hfo 
was  iu  but  a  very  mean  habit ;  for,  by  what  I 
could  learn,  his  clothes  and  everv  thing  tliat  be 
brought  in  witb  him  bad  beeo  taken  from  him. 

Counsel  for  the  Defendant,  That  will  not  do. 
What  condition  was  he  in  ? — A,  He  was  iii  the 
prison ;  he  had  been  in  the  prison  almost 
twenty-four  hours,  before  he  was  delivered  to 
tbe  artillery. 

What  orders  did  you  receive  concerning 
him  ? — ^That  I  was  to  suffer  no  person  to  ap- 
proach the  grate. 

What  gnUe  P— Tbe  prison  door.  - 


95] 


14  G£011G£  III. 


AcHonJbr  False  Imprisonment*'^ 


[96 


From  whom  did  yoi*  recem  tb^  orden  ?— 
From  the  adjutant  Iteuteoant  Frost;  he  was 
oor  acUofT  adjillant ;  be  read  the  orders. 

Not  to  let  any  one  come  to  that  ^rate  ? — Or 
oonverse,  or  have  auy  oommuniqition  with 
him,  upon  any  account. 

Whose  orders  does  the  adjutant  lieutenant 
gi?e  uiit  ? — I  imagined  it  was  a  general  order. 

What  do  you  mean  by  a  general  order  ?— - 
Coming  from  the  commander  in  chief. 

Do  you  mean  from  goTernor  Mostyn? — 
Yes :  he  was  commander  in  chief  then  of  the 
island. 

What  order  ? 

Seij.  Davy,  I  will  give  you  no  trouble  about 
these  things.    With  regard  to  orders,  you  have 

g'ven  us  notice  to  prmluce  the  orders.  The 
ct  is  as  you  contend.  We  mean  to  conceal 
no  circumstances. 

Court,  1  think  the  right  way  will  be,  as 
it  is  now  admitted,  that  this  was  done  by  the 
defendant's  order,  to  proceed  with  your  parole 
evidence,  and  read  that  at  tlie  conclusion. 

Counsel  J§r  the  Plaintiff.  If  your  lordship 
pleases,  we  will  read  the  order  of  imprison- 
ment, and  the  sentence  of  banishment. 

The  Associate.  The  title  is, 

**  Orders  given  out  to  tlie  troops  in  Minorca  by 
lieuienttut  general  Mostyn,  governor  of  the 
islaad,  who  arrived  the  21st  of  January, 
1771.  September  15:  In  order  to  relieve 
the  main  guard  at  St.  Phillip's,  which  now 
wants  a  sentry  extraordinary  upon  Antonio 
Fabrigas,  confined  in  prison  N**  1,  general 
Mostyn  orders,  that  three  men  be  added  to 
the  artillery  guard  in  the  castle  square,  as 
they  are  most  contiguous ;  and  that  duty 
taken  by  them,  the  sentry  must  be  posted 
night  and  day,  and  is  to  suffer  no  person 
whatever  to  approach  the  grate  in  the  door 
of  the  said  prison,  either  to  look  in,  or  have 
any  communication  with  the  prisoner,  the 
prevost  marshal  excepted,  who  is  constant- 
ly to  keep  the  key  in  his  possession." 

**  To  Anthony  Fabrigas  de  Roche. 

**  You  Anthony  Fabrigas,  inhabitant  of  the 
arraval  of  St.  Phillip's,  are  b^  me,  chief  gover- 
nor of  Minorca,  banished  this  island  for  twelve 
months  from  the  date  hereof,  not  to  return 
hither  until  that  time  is  expired  at  your  peril, 
for  your  seditious,  mutinous,  and  insolent  be- 
haTiour  to  me  the  governor,  and  for  having 
dared  most  dangerously  and  seditiously  to  raise 
doubts  and  suspicions  amongst  the  inhabitants 
of  the  arraval  of  St.  Phillip's,  and  to  excite 
them  to  dispute  my  authority,  and  disobey  my 
orders ;  and  for  having  further  presumed  most 
dangerously  to  insinuate,  that  his  majesty's 
troops  unJer  my  command,  without  any  au- 
thonty  from  them  for  such  false  and  scanda- 
lous insinuations,  were  imposed  upon. 

«» J.  Mostyn,  Governor." 

"  Mahon,  17th  day  of  September,  1771." 

Q.  Yon  say  you  received  this  order  to  per- 
mit BO  p«raoQ  to  approach  lh«  grate  of  the 


prison,  or  have  anv  communication  with  the 
plaintiff:  did  you  obey  this  order  P — A.   Yes. 

Did  ^on  obey  it  strictly  f — Yes,  as  strict  as 
it  was  m  my  power. 

Did  any  person  apply  to  see  the  plaintiff?— 
Yes,  his  wife  and  two  children. 

Were  they  permitted  to  see  him  ? — No. 

How  near  were  they  permitted  to  come  to 
the  prison?— As  nigh  as  I  cad  guess,  about 
thirty  yards. 

They  were  not  permitted  to  come  nearer  ?— 
They  were  not  permitted  to  come  nearer. 

ifo  you  know  in  what  way  the  plaintiff  laid  F 
— He  lay  upon  the  boards. 

Were  there  no  beds  ?— No  beds. 

Was  any  bedding  sent  to  him  ? — I  saw  hit 
wife  vrith  bedding,  which  was  not  permitted  to 
be  brought  to  him. 

In  short,  tell  the  jury  whether  the  guard 
would  suffer  any  thing  whatsoever  to  pa» 
them  ? — If  they  did,  they  were  sure  to  cone 
to  trouble,  to  punishment,  by  it;  and  I  am 
certain  they  never  did. 

Tell  us  what  his  subsistence  was?^Bread 
and  water. 

What  sort  of  subsistence  has  a  deserter  if  ho 
is  confined  in  this  place  ? — It  is  a  general  role 
in  Minorca,  that  deserters  and  prisoners,  eveo 
for  capital  crimes,  should  have  provisions  seot 
them. 

What  provisions? — Such  as  the  island  af- 
fords, bread  and  beef. 

Court.  Do  you  know  whether  any  provisions 
were  brought  nim  ? — A,  I  never  saw  any ;  there 
was  such  a  strict  order,  that  nobody  ever  at- 
tempted  it. 

1  believe  there  was  an  air-hole  at  the  top  of 
the  prison? — Yes. 

Was  any  body  placed  over  the  air-hole  f— 
No ;  but  there  was  a  sentry  upon  a  bastion 
near  to  it,  who  had  orders  given  him,  that  no- 
body should  approach  this  air-hole. 

Upon  what  account  ? — For  fear  any  thing 
should  be  dropped  down  to  him. 

Court.  Was  that  particularly  upon  this  oc- 
casion, or  generally  when  deserters  were  there  t 
^No;  I  never  heard  a  circumstance  of  the 
kind,  but  during  the  time  Mr.  Fabrigas  was  in 
prison. 

Did  you  know  the  plaintiff? — Yes,  I  have 
been  at  his  bouse  several  times ;  I  was  at  the 
island  almost  nine  years. 

What  family  had  he?— A  wife,  when  he 
was  in  prison,  and  Bwe  children,  to  the  best  of 
my  knowledge. 

Now,  during  the  time  you  have  known  him, 
have  you  never  heard  him  say  any  thing  dis- 
respectful of  the  governor  ? — No  ;  he  onlj 
complained  of  his  hardships,  of  his  own  bodilj 
sufferings. 

William  Johns  sworn. 
Examined  by  Mr.  Peckham. 

Q.  Was  you  at  Minorca  in  1771  ?— il.  Yes. 
In  what  situatioo  and  capacity  ?— I  was 
garrison  gunner. 


W] 


FaMgiu  H>.  MoHf/n* 


How  \tfag  were  700  in  the  island  ? — Almost 
UBeyetrs. 

Dii  you  know  Mr.  Fabrigas  P — ^Yes. 

DU  jou  know  Mr.  Fabrigas's  situation  in 
Ik  iriand  ?— He  li? ed  f  ery  genteel  in  St. 
PMfc's. 

Did  be  live  in  the  same  state  as  the  pHncipal 
ahsbitants  of  St.  Phillip's  ?— Yes,  as  much  so 
m  ay  man  in  St.  Phillip's. 

Vh  you  remember  any  thing  of  his  being 
jBMOoed  f — I  saw  him  urougnt  to  the  prison. 

In  what  manner  was  he  brought? — By  a  file 
sfmen. 

Were  his  hands  bound  P — I  cannot  say. 

8cr|.  Damf.  I  admit  that  he  was  with  his 
kuds  bound,  as  the  first  witness  said,  and  that 
ke  was  kept  in  prison  by  order  of  the  goremor. 

Mr*.  Peckkam,  Do  yon  admit  that  he  was 
kand-eufledP 

Seij.  Dvoy.  Yes,  that  he  was  hand-cnlSed, 
Md  kept  in  the  way  described  by  the  former 


Q.  Was  he  kept  hand- cuffed  in  prison  P — if. 
1  beliere  not. 

What  sort  of  a  place  is  this  prison  P— 'It  is 
itt  apart  for  capital  punishments,  for  prisoners 
iketare  under  sentence  of  death. 

Is  it  a  prison  dug  out  of  a  rock  P — It  is  a 
ssUaraneous  place  in  the  body  of  the  castle. 

is  it  under  ground  ? — No,  under  the  top  of 
Ae  castle. 

Is  it  a  ground  floor  P — A  ground  floor,  I 
Mete. 

This  beiog  the  prison,  and  von  standing  there 
Is  guard  him,  do  you  remember  any  of  liis  chil- 
4ca  coming  to  see  liimP — I  saw  Ihh  son  the 
fa«  day  be  was  confined  there,  a  boy  about 

lS.cime  to  see  him. 

What  did  he  come  for  ? — He  bad  some  pro* 
viMBS  in  a  basket. 

Did  he  apply  to  you,  that  those  prorisions 
■i^t  be  given  to  his  father  P — He  applied  to 
Ike  regiment  then  upon  duty  to  give  them  to 
kii  father,  iMit  was  denied. 

8erj.  Darvy,  I  admit  he  was  sent  hand-^ufled 
to  tbe  prisou,  as  described  by  the  former  wit- 
BCK :  I  meant  to  include  the  matters  of  belief 
as  well  as  matters  of  knowledge. 

Court.  For  my  part,  I  like  to  hear  the  eri- 
dcnce  in  any  case,  to  know  the  truth,  and  then 
«e  have  no  squabbles  afterwards. 

Johm  Craig  sworn. 
Examined  by  Mr.  Serjeant  Glynn, 

What  are  you  P— A  matross. 

Was  you  in  the  island  of  Minorca  in  1771  P 
—Yes. 

Do  you  know  Mr.  Fabrigas? — Yes. 

How  long  hare  you  been  in  Minorca  P — 
IVliy  niijli  nine  years. 

What  condition  was  Mr.  Fabriji^as  in? — In 
ftry  good  circumstances  there  ;  lie  is  reckoned 
SDv^'ot  tbe  best  in  circumstances  in  Ih^  island: 

Do  you  remember  the  time  when  he  was  in 
tbe  dungeon  there  ? — Very  well. 

You  did  not  do  any  duty  upon  him,  I  sup- 
FsmP— Ycs,Idid. 

VOL.  XX. 


A.  D.  177S.  [9S 

Do  yon  remember  whether  peopla  were  ad- 
mitted  to  see  him  P— I  am  sure  there  were  none 
admitted  to  see  him. 

Do  you  know  whether  any  nerson  came  to 
see  him  that  was  refused  P — I  Know  his  wife 
and  children  came,  and  they  were  refused. 

Do  you  know  of  his  being  taken  out  of  the 
prison  P — I  saw  him  put  on  board  a  ship  in  the 
harbour. 

How  many  days  after  his  first  imprkMm- 
ment  ? — 1  am  not  certain  of  the  days. 

About  what  number  of  days  was  he  in  con- 
finement P — Five  or  six  days,  to  the  best  of  my 
knowledge. 

In  what  manner  was  he  taken  out  of  prison, 
and  put  on  board  a  ship  P — I  happened  to  be 
down  at  the  quay,  and  saw  him  put  on  board  e 
boat,  to  be  taken  to  the  vessel. 

What  time  was  this' P^Early  in  the  morning, 
I  am  not  sure  to  the  time,  but  to  the  best  of  iby 
knowledge  I  think  between  three  and  ibur  in 
the  morning. 

Had  he  any  time  allowed  him  on  shoreP-^ 
No,  he  was  hurried  on  board ;  bis  wife  and 
family  were  coming  down  to  speak  to  him,  and 
the  soldiers  \cept  them  off,  and  would  not  let 
them.  I  wanted  to  speak  to  him  myself^  aid 
the  soldiers  would  hot  let  me. 

You  saw  his  wife  and  children  come  to  him, 
do  you  remember  whether  they  brought  anT 
thing  for  him  P — I  think  they  nad  some  bed- 
ding, to  see  if  they  could  i^et  it  on  board  the 
ship  he  was  g'Hng  to,  and  it  was  turned  back 
again,  they  would  not  allow  any  thing  to  come 
to  him  ;  he  was  put  on  board  a  boat  and  taken 
into  a  ship  whicli  was  laying  in  the  harbour 
there,  the  ship  was  under  saiL 

Serj.  Davy.  I  admit  he  was  banished  to  Car- 
tbagena. 

Coun.  for  the  Plaintiff,  You  admit  he  was 
banished  by  governor  Mostyn  for  a  year  P 

Serj.  Davy,  Yes,  1  do. 

Colonel  John  Biddulph  sworn. 
Eiamined  by  Mr.  Lee, 

Q.  Yon  are  an  officer  in  the  regiment  that 
was  at  Minorca  P— ul.  1  was  not  in  Minorca  at 
the  time  this  matter  passed. 

But  yon  have  beeu  at  Minorca  P — Yes. 

Did  you  know  Mr.  Fabri^as  ?— Yes ;  I  knew 
him  from  the  time  I  arrived  in  the  island  until 
I  left  it. 

VVhen  did  you  arrive  there  ? — I  think  in  the 
year  1763,  aliout  May  or  June,  and  stayed  about 
eight  years. 

When  vou  knew  Mr.  Fabrigas,  in  what  con- 
dition and  circumstances  was  heP — He  seemed 
to  me  to  be  of  the  second  sort  of  people  in  the 
island ;  he  had  some  viueyards  and  some 
houses,  and  some  property,  and  was  received 
not  as  of  tbe  first  r|uality,  but  as  a  gentleman  ; 
he  was  estcemcHi  a  man  of  property  :  1  should 
call  him  a  gentleman  farmer. 

While  you  knew  him  what  character  did  he 
bear  P  or  how  did  he  behave  himself,  as  far  as 
you  had  an  opportunity  of  observing  ?— As  tar 

H 


99J 


H  GEORGE  III. 


Aetionjbr  False  In^ritontiunt-^ 


[100 


ai  I  cotikl  obferre,  he  behaved  very  well,  and 
bad  a  very  good  character.  1  used  to  em- 
ploy liiin  in  getting  wine  for  aie,  and  other 
tbiogs  the  island  produced,  because  I  bad  a 
famUy ;  and  often  he  was  very  useful  to  me  in 

Iirocuring  things  at  a  reasonable  price.  When 
[  was  at  Citadella,  at  the  other  end  of  the 
island,  he  came  there,  and  was  with  some  of 
the  better  kind  of  people ;  be  was  always  with  a 
don  Vigo,  or  a  don  Sancbio,  who  were  reckoned 
the  pnnciual  people  of  the  place;  they  are 
nobles  in  that  island. 

While  you  knew  him,  1  ask  you  what  was 
bis  behafiour  P  Did  he  behave  like  a  peaceable 
subject,  or  like  an  unruly  and  factious  one  f — 
fie  always  behaved  with  very  great  decency 
and  decorum. 

Cross-examined  by  Seij.  Burland. 

Q,  Do  you  know  whether  he  was  a  man  of 
property  in  the  island  ?-^A,  As  far  as  I  under- 
stand he  was,  hot  it  is  impossible  for  me  to  say 
positively ;  he  was  reported  such. 

He  had  a  father  living? — I  believe  he  had, 
an  old  man. 

You  do  not  know  whether  it  fras  bis  own 
property  or  not  ? — It  seemed  to  be  his. 

He  conversed  with  the  two  noblemen  yon 
mentioned  ? — Yes ;  he  was  at  their  houses  as 
a  gentleman. 

Did  you  use  to  visit  at  his  house  ? — I  have 
been  there. 

Did  vou  ever  dine  or  sup  with  him  ?— >I  think 
1  dined  with  him  once. 

Court,  The  gentlemen  suggest,  but  you 
don't  mean  to  make  a  distinction  between  the 
classes  there  P— i4.  1  do  make  a  g^reat  distinction. 

Q,  What  promotion  has  general  Mostyn  in 
the  army  at  tliis  timep — A,  He  is  a  lieutenant 
ffeneral,*and  commander  in  chief  ot  the  island  of 
Minorca. 

Has  he  any  military  promotion  at  home? 
has  he  any  regiment  P — Yes. 

What  regiment  is  it  P — I  don't  recollect  the 
number  ;  it  is  a  regiment  of  dragoons. 

Do  you  know  of  any  office  that  the  general 
has  about  bis  majesty's  person,  any  place  at 
court? — 1  don't  recollect  it ;  1  believe  he  has. 

Serj.  Glynn.  My  lord,  we  have  dune  for  the 
plainUff. 

Serj.  Dory  for  the  defendant.  May  it  please 
your  lordship,  and  you,  gentlemen  of  the  jury, 
1  am  of  counsel  in  this  cause  fur  the  defendant, 

Enrral  Mostyn,  who  is  charged  with  a  misbe- 
viour  towards  the  plaintifl*,  in  the  defendant's 
capacity,  as  governor  of  this  island ;  the 
plaintiff,  Fabrigas,  being  a  subjtrct  of  the  crown 
of  England,  a  native  of  that  island,  a  Minor- 
giiin  by  birth,  and  living  in  the  town  of  St. 
Phillip's,  (there  is  a  reason  why  his  residence 
in  the  town  of  St.  Phillip's  is,  in  my  apprehen- 
SKMi,  material,  for  some  matters  which  I  shall 
trouble  you  with  before  I  sit  down.)  The  de- 
lendant  was  appointed  governor  of  the  island  of 
Minora  on  the  9nd  oTMarch,  1708.  His  pie- 
wu  gw  cmor  JtluMlM,  wh«n  prads- 


cessor  was  general  Blakeney.  So  far  I  am 
able  to  trace  back  the  governors  of  this  island, 
whom  the  questions  before  you  have  any  sort 
of  relation  to ;  and  any  further  is  unnecessary. 
I  don't  know  whether  it  may  be  new  to  any  of 
yon,  gentlemen,  to  inform  you,  most  probably 
not,  the  history  of  your  country  will  tell  you,  that 
this  island  of  Minorca,  whose  situation  is  in  the 
Mediterranean,  and  which  is  of  extreme  use  ia 
the  protection  of  the  Mediterranean  trade,  was 
taken  in  queen  Anne's  wars  from  the  crown  of 
Spain,  and  was  ceded  by  that  crown  to  Great 
Britain,  by  the  treaty  of  Utrecht  in  1713 :  that 
upon  the  ceding  of  that  island,  the  condition 
annexed  was  a  reouisition  on  the  part  of  Spain, 
which  was  acceded  to  on  the  part  of  Great 
Britain,  that  the  inhabitants  of  this  island  of 
Minorca  should  continue  in  the  free  exercise  of 
the  Roman  Catholic  religion,  which  couki  be 
no  farther  than  was  consonant  to  the  laws  of 
Great  Britain.  For  whereas  the  laws  of 
Great  Britain  will  not  allow  the  pope's  bulls, 
excommunication  from  the  court  of  Rome,  the 
inquisition,  and  some  other  matters  of  that 
sort ;  therefore  a  free  exercise  of  the  Roman 
Catholic  religion  was  not  with  the  exercise  of 
any  powers  in  the  bishop  of  Rome,  hut  what 
were  acknowledged  by  the  laws  of  Great  Bri« 
tain.  They  had  only  the  free  exercise  of  tbeic 
religion,  as  Roman  Catholics.  All  other  rights 
which  they  bad,  and  all  laws  by  which  thej 
were  to  be  governed,  were  to  be  given  to  tbeni 
by  tlie  king  of  England.  He  was  to  establbh 
what  code  of  laws  he  thought  proper  in  that 
country.  They  were  to  be  subject  either  to  d?  11 
jurisdiction  of'^  particular  sorts,  or  military,  or 
whatever  sort  the  king  of  England  pleawd. 
They  were  a  conquer^  people,  a  conqiier«4 
island,  and  no  terms  were  annexed  to  that  treat  j 
of  Utrecht,  but  only  the  exercise  of  the  Roman 
Roman  Catholic  religion.  The  king  was  to 
appoint  his  governor  of  the  island,  to  goyem 
them  by  such  laws  as  he  thought  proper  to 
direct ;  an  arbitrary  despotic  government,  or  n 
qualified  government,  or  whatever  government, 
under  whatever  sort  of  magistrate?,  or  what* 
ever  order  the  crown  of  England  should  think 
pro|>er.  There  is  a  manifest  and  very  wide 
distinction,  to  be  sure,  between  a  Minorquin  bj 
birth  (I  don't  speak  of  an  Englishman  that 
goes  over  there),  and  the  case  of  an  English* 
man:  1  just  mention  these  things,  vihicli  will 
be  very  projier  for  your  consideration  through- 
out the  i^irogress  of  the  several  facts  I  shall 
mention  m  ibis  cause.  They  are,  in  my  hum* 
ble  apprehension,  essentially  necessary  to  your 
consideration.  Some  time  aAer  these  people 
(1  don't  know  exactly  the  datr  of  it)  had  t>e« 
come  subject  to  the  crown  of  England;  after 
1713  they  petitioned  for  a  cootirmation  of  the 
usages  and  customs  of  Spain,  and  to  be  go- 
verned by  the  laws  of  Spain,  as  they  had  been 
used  to  be  before:  and  that  was  granted,  te  far 
as  the  wisdom  of  the  crown  thought  proper  to 
grant;  and  there  were  certain  regulations^ 
which  I  will  take  notice  of  by-and-by.  Many 
rqplatioos  w«rc  fluute  ftem  time  to  tima  occn* 


Fabrigat  v.  Mottyn. 
Mulljr,  fay  lb«  erowD  of  Great  Britain,  for 
llii  aUBnal  police  of  (he  i>tnDil.  Gentlemen, 
1  ihiidid  infurm  yaa  loo,  ihtl  llie  islanil  of  Mi- 
Mftt  oontisls  ol  five  sepirtte  ilitiiions  or  dia- 
bia.  In  fnur  ol'  thcH  ihey  bnfc  in«([iMraiei 
WMlIy  decieii.  In  (lie  filili,  which  ii  called 
lbun»l  of  Ki.  Phillip'ti,  which  is  the  I'nrl 
^iW  ialanit  and  itiieeunty,  there  the  parlicular ' 
lanawkkh  lajuat  tlie  Buburht,  which  takes  In 
itMtBol'Sl.  Pliillilt'a  mljoining  close  lolbefnot 
rfthe  citAikl,  Ihal  dialricl  is  under  the  imme- 
itOa  pwgrntpent  of  the  governor  ol'ibe  island 
maiuuil  hy  the  crown.  Tliere  are  no  jiirals, 
•kiek  ibe  commoD  name  of  the  niaeiiUatei 
iitb*  Mhcr  ditiiions,  whn  are  elected  h^  llie 
papla  i  b«l  llic  (iroper  officer  I'ur  the  |iolice  of 
■k«  Hra**l  is  apiioiDteil  by  the  gniernnr  hrtii' 
Rir,  and  I  tliink  hia  title  is  mustaslaph:  heia 
tW  ofiecf  apiMiolril  by  ibe  ^vernor  of  the 
■knl.  TbaK  i*  an  extreme  necesaity,  that 
Mve  particvlar  care  abauld  be  taken  in  the  re- 
(dalMO  «f  Ibe  jHtlire  ol'  that  part  of  the  islaod 
Mhieb  ■■  itBOtcitutrly  contiguous  to  the  fort  of 
Sl  Philfip'a,  and  where  there  la  a  perpetual 
(tmauB,  for  \\m  take  of  preserving  mililary 
teipIlM^  A  Ian  ortliiaiiland,  apiongatolhErB 
>kc!b  i*  neeeuary  tn  nieniioii  tu  yau,  because 
Iba  hiMor^  of  ttie  traniaclion  ha*  iuniediate 
l^ua  U  It,  i*.  that  the  Jurats  in  the  sereral 
yK\t  nt  ibe  lalaDil  in  Uie  luur  ul  her  districts  uF  the 
■had,  aii<i  the  muslaslaph  in  the  arraiul  ol'  St. 
Ptafcjt'a,  whfcb  a  the  Dhh  dependent  district 
min  Ibe  itnm«iliate  dcpeadcoce  and  |^*ern- 
•m  of  th«  ijMTeciior  bimielf,  set  a  price,  and 
iJt',  anJ  inramire,  ujiun  the  Reveral  comnio- 
'  IS.  I  ditn't  know  whether  it  includes  all 
iMiitlica.  hut  wine,  and  corn,  and  other 
!"■((, «bi«hibey  call  the  alTciralion, that  iathe 
VB^ar  price  to  be  jmid,  upuo  caiumoililies  to 
tt^L  Gcnlleinen.  in  the  year  1733,  (the 
AHtnc  M  malerial,)  there  was  a  reflation 
d  bjr.  tlie  ciowu,  made  by  the  kin^  m 
I  cstract  that  part  of  it  that  refjarris 


A.  D.  1775. 


fetMcMM 


;  that  it,  that  the 


diairiclK  and  uni' 

rnK)    <  that    tbi 

he  left  at  full 


A  you  Me  ihete  are 
MMwaitUa,  but  these  tour 
■  rniUa  are  aytwiiyinoui 
r^tt»  of  all  the  uuivemi 
'■'^^ny.  wiilioui  ibe  inlerveniion  of  the  com- 
sjoiMi,  or  any  otJier  of  the  royal  officers, 
'  M  Bake  the  ■fTuiatioa*,  and  setiie  the  assize 
•aa<  prima  of  all  mariner  of  com,  and  all  man- 
*  ■■  cf  pr<»  isioni,  the  produce  ol'  the  island  ; 
'  tii  alau  tlic  price*  of  com  imported  into  the 
'ato4,  aail  buii|;ht  by  the  uDitersiliES  for  the 
'  ftmX  of  Ibe  jiuiilic  ;  and  that  the  natives  anil 
'aaiababilatits  heat  all  titnes  perniilled  tn  sell 
'A*  iBia*  al  nr  iindar  the  atluratiun,  without 
'  Mf  JBWrf  tntioD  ur  the  ([""^lor  or  sccre- 
ina,  nr  any  vihrr  (Krson  or  prrauns  acUiii; 
•da  iiii  aulhnriiy.'  You  see,  genllenaen, 
M  ibia  onirr  uf  rouncil  imports,  that  these 
''il'*  Br«  ttulirr  the  *>Molula  deipoliirn.  if  I 
^11  wtay,  uif  tlitr  L-rawn  of  Greul  Uiiiain.  be- 
u!m  tbw  «  IS  a  language  that  wc  m  this  cnnn- 
' .'  m  M  ac^titiutco  witb.  \V  beibvr  to  icU  or 


[103 
n  Eoglish 


buy  our  goods,  or  not,  does  not  auil 
genins,  the  genius  uf  the  Eughsh  law.  i  nis  is  an 
order  made  by  Ibe  king  in  council,  in  the  year 
ITSa.  That  urdtr  of  council,  and  some  niber 
proTtsioDS  that  were  made  by  that  order,  oci-a- 

therefure  another  order  ol  council  was  n>aile 
the  folloiving  year,  the  lOlli  of  August,  JT53, 
which  you  will  in  Ibe  course  of  tliE  evidence 
hate  read  to  you.  There  are  sonte  iiiatiers  \a 
it  I  will  trouble  yon  with.  It  was  made  ii|H)n 
the  conaideration  of  several  papers  irDiisniilied 
from  MioorcB  by  general  Blakeuey,  whu  was 
governor  at  thai  time.  Several  ihiugs  wer« 
advised  by  the  privy  council.  Among  the 
rest,  I  shall  judt  extract  a  few  thinirs.  With 
reaped  uf  the  firal  ailicle  in  the  civil  branch, 
relating  lu  the  making  the  afforaiioua,  about 
which  great  cnmplaiiiU  have  been  exbihiieO, 
thai  the  governor  be  instructed  to  require  the 
jurats  of  the  several  terminus  in  the  ithiod,  at 
all  proper  times  and  aeai>onG,  to  innke  Iha 
tame  nflorations:  and  in  case  tbe  taid  ju- 
rats should  refuse  or  neglect  l<>  comply 
with  his  command  (herein,  that  then  tbe  snid 
governor  be  authorised  to  make  the  said  alTora- 
lions  himself:  but  due  care  is  to  he  taken,  that 
tbe  said  alforatioiis  be  made  equal  and  (general, 
as  ID  all  the  things  and  persona  lubJM'i  to  the 
said  afToratioBS,  as  well  as  at  all  prDjwr  aeaiiiins. 
This  word  *  aeasoDs'  will  have  some  uieaning 
by-aod-by.  Then  they  go  on  wiih  a  great 
many  regulations.  AmongM  the  res)  is,  adtia- 
ing  the  king  for  tbe  future,  hy  bis  Irllers  patent 
under  the  seal  of  Great  Dritam,  tuanthorise  the 
governor,  or  in  bis  absence  the  lieutenant- no - 
rernor,  ur  comraaniler  in  chief  for  the  lime 
being,  to  exercise  the  power  uf  civil  ;{Overn' 
ment,  as  well  as  those  of  the  military,  lakiog 
cs^to  preserve  the  one  separate  and  distinct 
from  the  other:  and  that  tliev  should  recrive 
all  this  power,  but  that  they  should  be  tiihject 
nevertheless  lo  such  iustruclious  as  should  be 
giveu  by  bis  msjetly.  He  is  lu  govern  ac- 
cording to  these  direcliona  containe<l  in  the  let- 
ters patent,  aa  also  to  such  inalruclions  a*  shall 
be  given  to  him  by  the  king.  Then,  among 
other  things,  here  is  a  direcliun,  aud  this  it  very 
material :  you  see,  it  meiitiona  some  confu- 
sioDs  thai  hare  ariseji  in  respect  to  the  ri-gula- 
tioua  made  befort:  in  175f :  that  it  may  be 
proper  ibr  the  goveruor  to  emleavnur  to  make 
the  iuhabilanis  aensible  of  the  great  happiness 
they  eujoy  uuder  the  king's  proieciioti  and  go- 
vernment, and  to  shew  them  ihnt  they  have  not 
only  at  all  litnea  been  tieatrd  wiih  justice  and 
equity,  but  with  lenity:  that  ihe  increase  uf 
richea  amon^nt  them  is  iiwing,  aniongsi  uiher 
ihiugn,  to  Ihe  great  sums  of  money  cuuatantly 
circulated  from  the  pay  of  the  king's  furcet, 
and  Iroiii  the  nuoalier  of  foreigner*  now  ael* 
tied  amoDg  lliem  on  account  of  their  trade: 
and  nka  the  tmaoaiUD  uf  thrir  trade,  ibej 
Iwing  permilled  10  carry  on  coiumerte  in  lika 
mauner  with  Ihe  real  of  bis  inajeiiij'B  Biiiisli 
aubjects :  unil  that  it  is  therefore  rxprcted.  iluit 
they  slivuU,  in  reluru  for  m  many  ([real  and 


103]  H  GEOltGE  III.  Actionfar  False  Jmpritonment^ 


[104 


rm)  lH*nf  flta,  most  hetrtily  tnd  effcctnally  con- 
cur nitli  hill  miyMty'g  gofernor  in  any  thinff 
litf  nIiuII  |in)|ioiie  for  his  m«j(*iity'f  Mff loe,  anu 
tho  hihmI  of  ih«  inland,  and  demean  themseWea 
a»  iHH^mii*  |(«i(mI  mihjecla,  &o.  and  it  may  not 
bf  improper  fur  Iho  aaid  gofemor  Uierefore  to 
int'urm  them  of  all  their  prifileftei.  Gentle- 
men, iihserve  three  arc  founded  upon  the  llih 
artirio  of  the  treaty  conuludoil  at  Utieebt,  on 
Uie  lath  of  July  1718;  and  that  they  cannot 
lie  euiiiled  to  any  olher  privilecei  than  those 
Bi|;nilied  therein.  And  for  the  uetter  infomia- 
li«in  theiyofi  tlmt  they  do  faiy  the  said  articles 
before  them,  n  coiiy  whereof  was  annexed 
thereunto ;  by  whitAi  it  appears,  that  they  are 
allow ihI  to  enjoy  their  Imuours  and  estates,  and 
havo  the  iVev  use  of  the  Ktmiaii  catholic  reli- 
||i«m,  aiHl  that  means  shall  be  used  to  secure  it 
lo  theiu  so  tVir  as  is  sfp-eeable  to  the  laws  of 
iSrest  Urttain,  whieh  they  still  ciuitinue  to  en- 
Joy  without  the  hMi»t  internipiion«  end  without 
any  fear  w  dread  of  the  court  of  inquisition ; 
and  that  at  the  senie  time  muv  inform  them, 
that,  hv  the  ancient  laws  of  tlhis  country,  the 
|Ni|»e*s  bulb,  vSee.  ere  not  |K'nnittetl  to  he  exe- 
cuted in  his  maji*«t\*s  doiuiui«*uft,  nor  any 
|ieoallv  levied  or  puinshmeut  iul)icte«l  under 
•ttch  Jecrersu  without  permi«iion  ot*  the  crown 
of  Great  Hriiaiu :  and  then  it  goes  on  nnd  giTes 
farther  directionv  with  ivgani  to  the  goTeruor^s 
Mitbority,  and  ibe  necessity  of*  thc«e  persons 
ibMneaninir  tbeuiseWes  cbeertully  to  the  onler 
Mf  the  c^veraor  ;  wbieb  is  the  gof  eramcnt  and 
coii^tkiuiion  of  ibai  country.    Now,  gmtletnen, 

C»u  wr  th«t  in  irjk3  soiue  cansidenble  rrfru- 
tiMis  wefv  made,  to  explain,  and  in  some  re- 
■yect*  lo  alter,  the  reflations  wbieb  bad  been 
lade  m  the  \«ar  irj^i.  And  awHber  thing  is 
cieariv  ot^wr^ed  ;  thai  the  tenor  of  all  tbe  in- 
atruuietti*  1  bare  ni«d  some  parts  of  to  you, 
lb«wenrtsuUtions  neither  in  trCO.nMicb  leisby 
the  e\plAiMl^H1  «4'ibem  in  ibesubM^ueni  vear, 
If^;^,  with  rt^nl  to  ibe  ailorstioo,  eouhl  not 

IhmmMv  ev.row  loihearravalot'Sl.  I^illip*s.fbr  [  goTerameoi  oC'  the  blAad.  be  found  cbts  re* 
Ibe  jurats  we^^  ihi^  pierMNw  who  wec«  to  make 
Ibe  Adkw«iK«a  IB  ibetr  several  muveffsiMk  or 
4Mrt\*ts«  OC  leffwiisivk  a«  thev  anf  caHe^.  Naw, 
M  lae  arrival  ^'  Sc  k\itlttp**.  ibenr  were  a« 
jiirai»  ai  ait :  <w«a^>(ueoilr,  tbat  wa.<«  n^  W 
Made  b\  tbe  ^v-^Hwr  vrikvi   ap^MMsar^  by  ibe 

rere^K  bi  wr^V.  ua'V^^T,  the  muscsftipb. 
owv  cf  lS«  "li  'jre  iff  t3«  jun»  nuking  ibe 
mF. TaCM«  ibe  (onrrmpr  wxi  »?  nukv  ii  hias- 
Stftf .  bai  \»i  lae*  a.Mrwt  mere  jre  ua  Taraai. 
TWrv  V  i:MKJ<r  \*}:  2^  9.*  W  Qoixvd  ;  and  ibai 
isw  li><&i  '. '  ytfrtvuix-*  inre  was  9iK  sake*  as  m 
%^  .%A:i  t  .Oil  a  •!  iiMOder  Of  >e«*iiicc  ^ia<  a  tfi« 
WTwrt;  ^.'f  Si.  l^i::;i>k  tbai  ».  wjenr  la^  firv 
tWMi  fr  .  u  c^^  ctwr  w-tf  avK  caaen  >si  laat.  :t 
^i(-)<  anM  ^.»  liw  i^HujQcici^w  <#t  :a«  «e«uxer«  er 
tb«  ^ifMiu^  a*l  euMpic  >e  jiannM  w«o  voaK 
poiuoi/tfK  cie«i|iisn«ee.  Fjt  tin 
MMr«i  Fuftk«Qir«.  when  be  w^r* 


tion  with  regmrd  to  wine,  particnlarly  in  tbb 
amtal  of  8t.  Phillip's.  That  was  aoon  after 
tbe  order  of  council  in  175S;  1  belieee  k 
was  in  1753  or  most  likely  was  the  begin* 
nbg  of  the  year  1754,  that  general  Blakeoey 
made  the  regulation  I  am  now  going  to  men- 
tion to  you.  The  mustastaph  was  an  oflieer 
there  that  did  tbe  office  of  jurat  in  the  other 
districts :  be  was  appointed  immediately  by  tbe 
governor.  The  jurats  in  the  other  districta 
were  chosen  annually  by  the  people,  in  order 
to  avoid  any  partiahty,  and  to  take  care  tbal 
the  mustastaph  shall  do  h»  duty  regularly^ 
that  the  inhabitants  that  have  wine  to  aell  aball 
aeil  their  wine  by  turns ;  tbat  all  the  people 
within  tbe  arraval  of  St.  Phillip'a  aball  aeU 
their  winea  by  turns ;  for  if  they  were  at  K« 
berty  all  to  sell  their  wine  as  fast  as  they  could 
sell  it,  that  would,  as  I  mentioned  just  now, 
tend  to  the  inioxicatinn  of  tbe  soldiers,  and  In 
the  ruin  of  the  island.  And  the  way  tbat  was 
aiipointed  bv  general  Blakeney  in  tbe  year 
1754  was,  t'bat  they  alioold  ballot,  or  cast  Iota, 
for  turns ;  and  then  the  several  people  tbat  bad 
the  lots  to  wll,  should  sell  at  an  aflforatioo  act- 
tied  by  tbe  mustastaph,  at  such  a  given  time. 
Tlien'the  others  shall  come  to  their  turn,  aa 
hit  I  lotted  ifur ;  so  tbat  every  one,  in  tbe  conne 
of  his  turn,  taking  tbe  chance  of  tbe  bellel, 
will  sell  his  wine  at  or  under,  if  be  picaaed,  tbe 
afforation  price,  during  the  time  apecifled. 
This  was  a  regulation  governor  Bhkeaey 
made  upon  the  order  of  council.  Tbe  peopw 
of  that  district  were  all  very  well  pleased,  and 
things  went  no  in  very  good  order.  Tbe  pe^ 
pie  were  glad  to  be  so  regulated.  Tbis  bon^ 
approved  of',  aad  consequently  being  foond  hf 
expefience  to  be  a  wery  good  regulaiMi, 
and  to  answer  all  tbe  good  ends  of  geveia- 
sent,  it  was  coaiinu^  during  all  ibe  re- 
mainder of  tbe  time  tbat  general  BUbeaey 
was  governor  of  tbe  isUnd  of  M.i 
Wben   irsveviior  Jobosion  snccecded 


ifvUiwo,  and  tbe  i:dand  in  very  gooil  order  ami 
iraB«iui!!ity.  He  found  tbe  regulaiien  bad  aa- 
swened  ali  the  good  ends  propped  by  it. 
continued  ibe  rvgiLaiioa  donng  alt  tbe 
tbat  be  wfts  governor  oc  tbe  Htand.  In 
wiwation  tbe'  Hfaad  w«»  t^^nad  by 
Mestvn,  ibe  ervsenc  deMdani.  when  be 
ceede'd  Mr  J  Weston  to  tbe  gwermmcnc  em  iIk 
iad  of  Mifvu^  176ci«  now  five  yt%n  ; 
preveni  go««TTMr  liwad  ^t  jWH  as  r>*erwie  J< 
bae  hmad  i  before,  and  woaen 
cescmony  m  ir,-*  wvaKmb  of  ^^etMrai  Bmk»- 
sev.  u  weiL  A^  -SE  tjie  cv«er«o9«a;  rrvn  wk«ii 
be  -^-mvvi  a  9  :ri«rk~  Ic  tMc  ■)«««  SfCN^ved 
?f  -a  Eaic*4csa.  invl  w«  aooriveii  «ii''  »v  tk<  m* 
llOiKaa^  clipnr.  inis  Mjitfr^iunk  I;  answered 
la  CM  fMd  eoiis  prooueiri  »y  it.  1:  ir  idied 
^eoof.  «WDM<i«iaty.  jou  boruoav  in  tii«  ulnnd^ 
wajnii  hod  seen  mun  ^  sedicimii  ami  *ha^mmm 
•rder  ta  iTj^  csiiiia. 


Fabrigai  v.  Mo-^i/n. 
b  Biy  tnroi  »  ptriicular.  There 
are  nor  less,  a»  yoii  will  h«  by- 
I  bistmilinintpnn  of  i lie  order  of 
sit.  which  had  been  presoribed,  yon 
_J*1TJ4,  bikI  cnntinoeil  tU  tlie  lime  duwo, 
MttrrollinK  spirit  of  the  plHinlilT  ihouglit 
^r  td  Irrrak  lfarout;h  bM  onlvr,  G«ntle- 
»,  <  «ilJ  be  lime  oow  Tor  me  tu  lake  nullce, 
tl  M>e  to  far  gone  inlo  ibe  general  Uisl'Ty, 
i<B«b«r  (ircmaMance,  nhich  is  nniorioiis  lo 
M^smllemcn  nho  have  been  «eUlt»l  in  lliat 
ri«L  M  wcl)  ][OTt>ru<>T«  i«  llie  n\\rt  mJIItBry 
■AwLu  lh>l  liBve  been  Ihere,  llisE  the  native 
iMaiimiifriinrr-i  are  hut  ill  afl'ected  lo  Ihe 
li(Ui,  aai  to  >be  EiigUsli  ga*emiaeDt.  It 
irM  Mch  ta  be  wondereil  at.  Tbey  are  the 
hiimiiiilii  iimiirr'-|  '-  TItey  cuoBiiler Spain 
>|W  cBunlry  to  which  tbey  iiught  nalurally 

■  tMtf;  and  it  is  not  at  all  In  be  wondered 

■  ikMMse  people  are  not  well  itlaimsed  lo  Ihe 
Eaftah,  wha  Ihcy  consider  as  Iheir  coiiqnerors. 
Itfnw  inattDce  of  that  happened  at  Ihe  lime 
rfkTiBnHttn  of  Minorca  liy  the  French, 
lAn  Ifcc  French  took  it,  which  I  helierewaa 
a  tm  yf«r  1T36,  the  beginniog  of  last  war : 
■1  >1  b  t«ry  nn^nlar  ihst  hai-iMy  a  Miiinrquin 
MA  ima  in  rfelpnee  of  the  ialand  against  ibe 
hachi  th«H*roDij^t  prouf  in  the  world  thai 
taj  were  »cry  well  pivased  at  Ihe  eouiilrj  l>e- 
^  wmled  trom  the  liunda  ot  (lie  English. 
tW  Frnieh  did  take  it,  as  we  all  very  well 
'»■>;  bill,  iliank  God,  we  have  Jl  again.  ,Or 
d^  jtlinorqiiias  in  that  islnail,  perhaps  Ihe 
^■■if  Rands  BinfruUrly  end  mo«t  eminenlly 
Mr  BHi  wriilions,  liirhultnl,  and  diisalisHeil 
i%il  t«  <t>e  crunn  ofGreai  Itrilain,  that  is 
*kibaad  ta  lUe  hi  land  of  Minorca.  Gentle- 
te.W  B,  nr  clmse)!  to  be,  called  for  Ibis  |iur- 
^••a  patriot  of  Minorca.  Now  patriotism 
'iikry  pretty  thing  among  oureelres,  and 
waviuuch  t»  it;  we  owe  our  liberties  lo  it: 

livohuiald  have  bm  little  tu  value,  and  per- 
^  •«  sbciuld  have  but  little  of  ihe  liheny  we 
Waiftfy  were  it  ncil  fur  our  trade.  And  for 
k«kc  of  oar  trade  it  is  not  {it  we  should  en- 
MtgT  pBtriiitiaai  iii  Minorca;  for  it  is  there 
iWMiiewf'Hir  trade,  and  lliere  is  an  end  to 
WMde  in  ttw  Mediterranean  if  it  goes  lliere. 
tHbn«  il  li  very  well ;  for  the  body  of  ihe 
Mleof  ibU  country  they  will  have  tt:  Ibe^- 
L>r  ^nnandeil  ilt  and  id  conseqiir-nce  of  their 
atmii  they  baveenjoyed  liberty,  which  tliey 
•d)  TOotmiw  to  pMlerily ;  and  it  i*  not  in  Ihe 
T  of  i1ii«  tjiivertiment  to  deprive  them  of 
B4it  Ihev  will  lake  care  of  all  our  con- 
fast*  afaroad.  U'lhiit  spirit  prevailed  in  Mi- 
■■na,  the  ciinaM|neiice  ofit  vtauld  he  the  loss 
rfihsf  CKMinirv,  and  of  course  our  Medilerra- 
Ma  itmIe.  We  should  be  lorry  lo  tet  alt  our 
ihrai  free  in  our  plantations.  Gcnilemen, 
kvii^  nonr  ironbled  you  so  far  in  general  con- 
eoweihcUw,  tbuailUBlinn,  and  govern  men  I, 
sfMia  talaMi,  and  giten  vou  a  hint  loo  of  Ibe 
tpK  of  Ibe  ptaiatiir,  which  I  don't  wish  lo 
MhE  the  leaM  impression  upon  you,  unless 
e  d1'  facU,  which  we  shall  produce, 
'  p  ujion  j'ou ;  pre  me  leare  to 


A.  D.  177S.  [106 

end  to  (he  particular  circumitaDces  which 
f,-,^  rise  lo  the  mailer  now  eomplnined  of. 
The  plain  I  iff,  Pabrigas,  whs  aDHtivenf  ihelnnn 
of  St.  Phillip's,  and  within  ihe  arraval  of  St. 
Phillip's,  and  conseiiuenily  under  the  imnie> 
diale  eye  of  Ihe  governor  himself,  as  he  was 
within  that  district  which  is  regulated  by  ihe 
muslaslaph.  In  July  ITTl  he  thought  proper 
to  present  a  petition  to  §;ovemor  Mosiyn,  the 
del'endaul,  in  this  form :  "  fjhewelh,  Ihai  your 
petitioner  has  now  by  him  twelve  casks  of  wine 
of  tlie  produce  of  his  own  vineyards,  without 
having  purchased  so  laucb  as  a  gtape  of  any 
other  person,  of  which  he  has  not  sold  a  drop, 
when  several  niher  inhabitants  of  Ihe  town  have 
>ld  all  (heirs,  as  well  from  the  produce  of  their 
wn  vineyards,  as  what  they  houi^ht  lo  make 
profilby;  and  this  with  Mr.  Allimnndo  th« 
luslaslaph's  permit.  That  the  petitioner,  on 
the  asih  instanl(July}  applied  to  Mr.  Alliraundo 
for  measures  to  sell  wine  by,  of  the  rale  of  Iwd 
duublers  per  quarter  less  ihan  the  afforalion 
price,  which  would  have  raised  aprofil  to  Ihe 
troops  and  the  poor  inhabitants  of  St.  Phillip's: 
hut  nntwithslandioff  his  demand  was  very  rea- 
sonable, anil  conformable  to  the  expre^  dispo- 
siiion  (direction  I  suppose  he  meant)  of  iha  6rst 
article  of  his  mnJEsly's  regulations  of  1763,  re- 
gulating ihis  island,  where  it  iseipressly  men- 
tioned that  the  iuhabilanis  shall  always  be  per- 
iniilcd  to  sell  at  Ibe  price  of  the  aRbration,  or 
noderit;  Mr.  Allimnndo  refused  his  petiliOD, 
telling  htm  that  he  would  not  buy  his  wine  : 
and  that  this  is  not  only  against  ihe  reason  and 
justice  of  the  public,  and  the  garrison  of  8L 
Phillip's,  but  also  contrary  to  his  majesty's  or. 
ders  in  the  said  refrnlalioD :"  aud  he  menlions 
that  the  mustastaph  had  made  (ifiy  casks  of 
wine,  and  sold  ihem.  Now,  gentlemen,  two 
or  three  nbservalions  occur,  before  we  go  any 
further.  In  the  firsl  place.  Ibis  gentleman,  if 
I  may  call  him  so.  Ibis  Pabrigas,  goes  upon  Ihe 
idpa  of  the  regulation  of  1752  bring  disan- 
nulled. In  the  second  place,  lie  goes  upon 
Ihf  idea,  that  Ihe  nnler  thai  was  made  of  17S3, 
was  uiiiversnt  over  all  the  island,  without  dia- 
tinclion  of  this  district  in  Ihe  arravalof  !4I.  Phil- 
lip's, in  bath  which  you  see  he  was  mistaken. 
Annther  thing,  which  dou't  slrlke  so  imme- 
diately from  what  I  have  read,  and  yet  here 
give  roe  leave  lo  lake  notice  of  it — il  is  art- 
fully ihmwninlo  this  petition,  as  if  the  good 
of  ihr  garrison  was  very  much  concern^  io 
his  having  his  petition  granted.  And,  gen- 
tlemeo,  I  do  assert,  and  shnll  be  juslitied  in 
Ihe  asseriiiin,  I  dure  say,  by  your  opinion, 
before  1  have  dnne,  or  at  least  before  Ihe  evi- 
dence is  gone  through ,  that  his  design,  from  ilia 
beginning  lo  the  end  of  it,  was  la  stir  up  sedi- 
dilinn  and  mutiny ;  and  amongst  Ihe  resl,  par- 
licnlarly  to  pniot  10  Ihe  passions  and  inclhiations 
of  the  soldiers  of  the  garrison  lo  lake  his  part 
QgainsI  the  governor.  This  petition  being  pre* 
seiiled  to  Ihe  governor,  the  governor  called 
upon  Mr.  Allimundo  to  give  an  answer  to  tbia 
man:  for  you  see  be  complained,  ihsl  he, 
fabrigas,  had  not  ibe  permuaioik  to  sell  bw 


107J 


14  6E0K0E  III. 


Aaionjbr  False  Imprisonment'^ 


[108 


own  wiae,  Allimaiido  havinif  refosed  him  the 
measure  by  which  be  should  sell  it ;  and  in  the 
next  place,  that  Allimundo  himself  had  sold  bis 
wine.  Allimundo  did  gi?e  an  answer  to  this ; 
for  the  Koremor,  willing  to  serre  ever^  body. 
And  to  act  with  the  most  impartial  justice,  and 
being  uneasy  himself,  that  any  Minormiin 
should  be  uneasy ;  for  the  uneasiness  of  a  Mi- 
Dor(|uin  perhaps  diffuses  itself  further  than  a 
particular  man,  and  is  a  fit  matter  to  be  at- 
tended to  by  government ;  he  called  upon  Alli- 
mundo to  explain  this  matter.  Allimundo 
ga?e  a  full  and  clear  answer  to  the  matter ; 
and  stated  in  tliat  answer,  that  Fabrigas's  com- 
plaint was,  because  his  turn  for  selling  wine 
liad  not  come,  according  to  the  lots  f  men- 
tioned just  now,  and  that  was  the  only  reason 
why  be  had  not  j^et  sold  a  drop ;  for  no  man 
ODuld  oell  a  drop,  till  by  balloting  his  time  was 
€ome :  so  that  rabri^  bad  nothing  to  com- 
plain of.  But  he  insists^  that  no  man  ought 
to  be  bound  bv  the  lots,  but  that  every  man 
bad  a  right,  by  the  regulation  of  1752,  not 
taking  notice  of  the  regulation  since  that,  but 
that  any  man  might  sell  under  the  afforation 
price:  therefore  be,  offering  to  sell  under  the 
afforation  price,  ought  to  be  permitted  to  sell 
his  wine  without  waiting  for  ballotting.  He 
was  mistaken  here:  first,  because  that  order  of 
1759,  had  been  rescinded,  and  was  not  the 
iHnding  order :  second,  that  be  lived  in  a  dis- 
trict, where  it  was  not  to  be  regulated  by 
jorlt8«  but  by  order  of  the  governor :  thirdly, 
that  the  regniation  which  had  been  obtained  in 
the  former  governor's  time  had  been  the  way 
1  have  represented  to  yon  :  in  all  which  parti- 
cular heads  he  was  grosly  mistaken ;  and 
therefore  he  had  no  cause  or  complaint  that  he 
bad  not  sold  any  of  his  wine,  his  time  for  sale 
being  not  yet  arrived,  according  to  the  regula- 
tion of  the  lots.  With  regard  to  the  other  part 
of  the  complaint,  that  Allimuudo  sold  his  wine ; 
Allimundo  freely  insisted,  that  he  had  a  right 
to  do  so.  He  claimed  a  right  which  had  been 
enjoyed  by  all  his  predecessors,  and  which  he 
could  not,  without  an  order  from  the  governor, 
depart  from,  not  only  for  his  own  sake,  but  for 
the  rake  of  his  successors ;  that  he  had  a  right 
to  sell  his  own  wine  without  resorting  to  the 
lots,  and  that  he  had  not  bought  any  wine,  but 
■old  his  own  wine.  This  answer  Being  given 
by  Allimundo  to  the  governor,  the  governor 
upon  that  sent  word  to  the  plaintiff,  that  he  had 
eoquired  (for  he  had  not  taken  Allimundo's 
word  for  it,  but  had  enquired)  into  the  matter, 
and  found  what  Allimundo  had  done  was  right, 
and  aflbrded  no  cause  of  complaint.  This  was 
aome  time  in  July.  Upon  tbe  11th  of  August, 
ibis  Fabrigas  thought  proper  to  prefer  another 
petition  in  these  words,  *<  1  had  the  honour  to 
present  a  memorial  to  your  excellency,  sbew- 
mg,  the  transgressing  and  not  observing  in 
the  said  town  two  regulations  given  upon  the 
S8th  of  May  1758,  by  bis  Britennia  ma- 
jeaty  [still  adhering  to  the  order  of  1759,  as 
<f  tbm  had  been  no  sabaequent  order]  that 
te  iababilaiit  ahould  ha  pemittad  to  tall  bit 


fruit  at  the  fixed  price,  the  afforation,  or  under  i 
secondly,  that  no  commander,  judge,  or  of« 
ficer,  be  allowed  to  have  any  traffic,  bargain, 
or  so  forth  :  [It  cites  a  great  deal  of  this  order, 
and  then  he  takes  notice]  that  Allimundo,  who 
does  tbe  functions  of  mustastaph,  bought 
grapes  and  made  wine.  And  then  he  offers  to 
sell  to  the  inhabitants  in  the  garrison  of  Hi. 
Phillip's,  twelve  casks  of  wioe  that  he  has  got 
by  htm  of  his  own  vineyard's  produce,  at  two 
doublers  less  than  the  ordinary  afforation  and 
fixed  price.  The  petitioner  has  applied  several 
times  to  your  secretary's  office  for  your  excel- 
lency's decree  [that  is,  for  his  answer].  Your 
secretary  told  your  petitioner  verbally,  that 
your  excellency  was  ratisfied  with  the  answer 
given  by  Allimundo ;  at  ^hicli  he  is  surprised, 
as  he  is  ready  to  prove,  in  a  judicial  way,  the 
truth  thereof."  [Then  he  prays  the  governor 
to  give  his  decree  at  the  foot  of  the  ntemorial, 
and  to  have  tbe  satisfaction  to  justify  himself, 
and  to  prove  his  charges  against  Allimundo.] 

Gentlemen,  this  second  petition  being  pre* 
sented  to  tbe  governor  upon  the  16th  of  Au- 
gust, which  was  A^e  days  after  the  date  of  it, 
governor  Mosty  n  took  the  only  possible  step  for 
a  man  in  bis  situation  to  take,  consistent  with 
wisdom  and  justice ;  and  that  is,  to  refer  both 
tbe  petitions,  or  memorials,  as  well  the  former 
as  tbe  second,  to  the  proper  officers  of  justice, 
for  their  determination.  Accordingly  he  did 
refer  not  only  the  two  petitions,  but  also  tbe 
answer  or  justification  of  Allimundo.  He  re- 
ferred all  these  papers  to  the  only  proper  oflioer 
there  to  i;efer  this  matter  to,  namely,  the  soli- 
citor general  of  tbe  island,  and  Dr.  Markadai, 
the  first  law  officer,  in  order  that  they  miglit 
enquire  into  the  matter  of  complaint,  and  im- 
part their  opinions.  They  made  their  report 
upon  the  31st  of  August  to  the  governor. 
Now  you  will  see  what  were  the  opinions  of 
the  lawyers  of  the  island  at  that  very  time,  that 
the  orders  of  his  majesty  in  council,  of  tha 
year  1752,  relative  to  the  sale  of  winf,  had  never 
been  executed  in  the  suburbs  of  tbe  castle  of 
St.  Phillip's.  You  see  it  is  just  what  1  told 
you  at  first ;  that  is,  the  arraval  of  8t.  Phillip's, 
that  order  of  1759,  was  never  understood  to 
extend  to  that  particular  district,  which  is  under 
the  immediate  government  of  the  governor 
himself,  that  is  the  place  where  this  man  dwelt. 
Then  they  ny,  secondly,  that  the  custom  ob- 
served in  the  suburbs,  upon  the  sale  of  the 
wines  of  the  inhabitants,  has  been,  that  the 
mustastaph  had  the  direction  of  distributinsf 
tbe  measures  among  those  inhabitants,  whicn 
was  continued  till  some  years  past;  when  lieu- 
tenant general  James  Johnston,  lieutenant  go- 
vernor of  the  island,  in  order  to  avoid  com- 
plaints, formed  a  regulation,  dividing  the  raid 
suburbs  iuto  four  quarters,  and  onlered  that 
the  wine  should  be  sold  by  such  of  the  inha- 
bitants unto  whom  it  should  fall  (1  see  I  am 
mistaken ;  it  was  introduced,  I  see,  by  fo^ 
vemor  Johnston),  which  cegukition  at  thiatune 
exists.  Tbe  third  is,  that  Antonio  AUimimda 
waa  daded  miistaatifb.    Foiirtbly»  tbat  AlU* 


Tahrigat  w.  Molfyn. 
1,  JiMqih  Nelo.  U«lph  Preter,  and  Jo- 
fcLnlie,  who  aie  tlie  iirnniiB ihai  have  exe~ 
n  (be  office  nt  niusUiiiapli  iif  llie  uid 
lAi  i<ir  soieral  yenn  |i»l,  b«ve  beeo  oc- 
oa^N^MparchMetpvpc*  furmak'mg  w'met 
-4a  w  the  iltfcace  of  Allimunilo.    Tben 

tnuliff 

t  office 
.  .JHke  wine  from  grapes  bnui^hl 
tj  Itannaeltes.  And  Ihen  lastly,  dial  lite 
MkiNf  «f  Mine  from  grapes  boujjtit  bail  nnt 
tna  rvckoiMil  an  illicit  iraflic,  nor  iDcoin- 
pMt  •riih  ihe  ollice  of  baillfl',  jurat,  musta- 
«ifb.  »mA  wo  foiili.  Now  Bee  <*liai  lueilioj 
IMM  •fficen  look  to  be  InronDed  of  this  matter, 
»  •»*«■  W  give  the  answer  to  the  go»tinor. 
"  TbM,  Mt,  n  wbat  in  abedieace  lo  your  excel- 
Inn'*  ontor,  we  can  inform  yoo  of,  ■cconJing 
M  aut  a|ipeani  u  result  from  the  ileclaralions 
wbieb  we  have  received  upon  uatli  from  tbe 
pnfcraat  pvnoru,  wbose  original  depositious 
raanin  atMOK  ibc  arcliivpi  of  tbe  royal  go- 
Nnnunl."  These  two  observations  naturally 
•eenr.  In  the  Bret  place,  that  tl>e  governor 
ImIi  tke  «Dty  method  he  could,  uuon  the 
••■litoiiit  of  this  mia,  to  refer  it  to  the  only 
tntwrnScrr  of  tbe  island,  upou  whose  report 
MmfbCikpeiHl,  with  Ibe  power  of  cjcamina- 
(an  its  till*  officer,  of  all  praper  persons  upon 
a<fc,  tot  Ibcir  iDformatiou.  That  upon  the  re- 
Mdt  if  Ott  repnri  of  tbia  oiGcer,  it  appears  that 
IkemapUinl  uj'  Pabrij^aa  was  groundless.  It 
9m  gi«UDj|e«s  both  wilb  ri^pecl  to  bis  claim 
ti  (iif  ht  to  wll  out  of  the  order,  by  ca^lin^  of 
hm:  ii  trai  ^rouodlea*,  likewise,  wllb  regard 
ti  lia  (MBiilaint  a|;ain8l  Allimundo,  for  having 
■Uvw  lumoelf.  Fur  ihey  aay  that  the  re- 
pMas  maile  in  1753,  had  never  applied  to 
•W  tmxtx  «f  8t,  Phillip'*,  that  is,  the  arrstal 
ti  Ik.  t'liilli|>'s.  Tliey  tay,  secondly,  that 
Mk(B  tlMi  iliatrici  lliey  bud  alwuyg  aolil  their 
>ae  by  IvU.  And  ihry  nay,  thirdly,  that  ibe 
^■Uataph,  and  llie  other  officers  that  do  fix 
thaaAvml'iun,  liatealwavi!  lold  wine  the  way 
tat  AUliniioihi  lis*.  This  was  the  answer 
Ihal  was  given,  and  this  the  re|<ort  that  was 
Itade  !■  tbe  {(ovcruor,  io  consequence  of  his 
Inin^  rerrvred  lo  tbem  the  two  petitions  of 
PsirifM.  M  well  a*  the  aiiswrr  of  Allimuada 
•*  (far  pHit»D.  Of-ntlemrn,  they  alWrwards 
aa^  a«atber  rejMri ;  for  this,  I  lohl  you,  wu 
»  IIM  31*4  of  August.  They  inaile  amilber 
>rf»ri  luur  ilayi  slier  Upon  the  4th  of  Seplem' 
fcn  Ibi-y  (five  an  account,  for  the  governor 
>i*  tery  'tniniui  lo  know  in  what  manner 
^nt  teatltnwn  bail  proceeded.  (You  see 
to«*  i*  a  ycneral  alliitjoii  al  the  fool  of  the 
npavl,  to  ibfir  haviut;  examined  proper  per- 
>«•  aoAD  oaih.)  The  gniernor  was  exceeil- 
■;lj  Jraimua  to  know  in  wbol  order  these 
-iWiBFD  b*d  prorerdeil,  to  lee  wbelher  all 
■■I*  care  had  been  taken  to  avoid  ouuiplaiol, 
A  frum  *n  rarnett  dmre  he  bud,  that  all 
-i.-i*r%  ut  oumiilainl  mij'ht  subside,  that  there 
M  b«  one  ■luuerul  riilo  of  good  goveru- 
■  prvaarvrd  aiitun^  Ibe  Alinoriiuiusi  and 
_*lBMe^i*mtiit  ba  answerable  to  lb*  crown 


A.  D.  177S. 

of  Great  Britain  for  any  improper  coniluct. 
"  We,upon  tbesBOJeday.thc  I6lh,  that  is  iba 
day  of  relerence,  we  wrote  lo  the  said  Allimun- 
do and  Fabrigaa,  citing  them  by  our  coniinis* 
sion,  and  orderini;  lliem  to  appear  upon  lb* 
aOlb  ;  and  in  ohMlieoce  to  which  tbey  having 
appeared,  we  again  ordered  them  to  appear  on 
the  33d  following  with  Ibeir  proofs  and  docu- 
menls.  At  their  appearing  on  the  23d,  we  de- 
manded of  Ibem  Ibeir  proofs  and  justification ; 
when  Fabrigas  answered,  lie  did  uot  intend 
to  enter  into  the  same,  till  he  had  obtained  the 
decree  nf  the  3d  memorial,  that  is,  the  answer 
of  the  gorerour  in  writing.  On  the  26th,  Fa- 
brigas was  convoked  in  your  excellency's  of- 
fice, where  it  was  asked,  what  action  it  was  ha 
inteuded  by  these  memorials  against  Allimundo, 
whether  civ d  or  criminal  P  And  having  time 
given  him  to  answer,  he  replied,  a  civil  one; 
all  which  appears  hy  the  acts  to  which  we  re- 
fer. As  the  ssid  Fabrigas  hath  not  this  day 
represented  before  us  any  proof  by  way  of  jut - 
lificBtion  of  his  ssid  two  memorials,  wu  there- 
fore, for  (his  reesuu,  have  the  honour  to  submit 
the  same  to  the  conaideration  of  yuur  excel- 
lency's wisdom,  ibai  you  may  not  impute  to 
us  the  least  omission  of  Ibe  liTely  desire  we 
have  toexecule  the  orders  of  your  excellency." 
This  is  dated  the  41b  of  Septemlier.  Upon 
this  order,  this  report  that  was  tben  made 
upon  the  41b  nf  September,  which  gave  a 
clear  satisfaction  that  every  thing  bad  been 
done  with  proper  care  and  caution  to  pre- 
vent any  complaint,  Ibis  Fabrigas  presented  a 
third  petition  or  memorial.  I  call  Ibem  peti- 
tions, remonstrances — I  don't  know  what  nam* 
lo  call  them  hy,  but  still  they  have  Ibe  title  of 
a  petition — he  called  it  Ibe  humble  pelilion — 
and  in  this  Ihird,  as  in  the  second,  be  had  com- 
plained of  Allimundo.  Now  here  is  a  reraon- 
Btrance  against  the  judges  : 

That  "  whereas   tbe  judges  delegated   bjr 

yunr  excellency" 

-  Court.  Of  what  dlU  is  this? 

^eri-Davi).  I  haveooprecisedatetolt.  "Tba 
judges  have  denied  bim  a  communication  oflba 
answer  t;iveo  by  Allimundo,  who  does  the  func- 
tions of  mustaslaph  of  St.  Phillip's:  prays  you 
will  be  pleased  to  order  tbe  judges  to  receive  tba 
witnesses  which  are  produced  lo  juslily  tba 
ai  tides."  And  then  follows  upon  this,  no 
less  than  twelve  articles  of  impeachment,  a*  ' 
it  were  ;  arliclcB  upon  which  the  witnesses 
were  produced  to  prove  some  facts  committed 
by  Allimundo  against  his  majesty's  orders, 
and  to  prove  some  injustice  done  by  Alli< 
rnuodo  against  the  Minorquins  inhabiling  ibe 
town  of  St.  Phillip's,  and  against  bia  majesty's 
■ronps  of  that  garrison.  Then  followit  a  siring 
of  twelve  articles,  which  1  don't  mean  to  read 
to  you  now :  you  will  have  them  by-and-by 
in  due  order.  Then  he  siieaks  of  the  prices  of 
meat,  fish  and  several  olher  things,  all  which 
he  complained  are  not  well  dune  ;  and  there  i% 
a  general  complaint  throughout  the  govem- 
ment  of  all  tbe  otficers,  that  all  the  ftlinorquina 
are  ill-uwd  by  the  misconduct,  mitruk  and 


Ill] 


li  GEORGE  III. 


Action  fir  Fake  Imprisonment" 


[lis 


mnmaDBgnement,  by  the  under  offioen  of  the 
garrtsoo.  Noir,  gentlemeD,  you  would  have 
•apposed,  if  governor  Mostyii  bad  been,  what 
the  world  knows  be  is  not,  a  rash  man,  be 
might,  perhaps,  have  very  well  justified  some 
ceosure  at  Itast,  of  what  sort  is  another  ques- 
tion, upon  the  coodnct  of  Mr.  Fabrigas,  whose 
oonduct  points  very  strongly  to  sedition.  For 
consider  where  we  are  speaking  of.  We  are 
not  talking  of  the  city  of  London ;  we  are 
not  talking  of  a  town  in  Etiflfland;  but  are 
talking  of  the  town  of  St.  Phillip's,  just  at  the 
Ibot  OT  the  glacis  of  the  citadel :  and  this  stir- 
ring up  sedition  amon^  the  Minorquins,  who 
were  already  too  ill  disposed  to  government. 
But  governor  Mostyn  did  act  in  this  business 
with  that  candour  and  hamanity,  that  delibera- 
tion and  wisdom,  for  which  his  character  is  so 
eminent.  And  therefore,  after  this  third  me- 
morial and  articles,  the  next  step  he  took  was 
lo  take  farther  advice  of  all  the  superior  law 
officers  and  magistrates  of  the  island,  that  is, 
on  the  5th  of  September,  1771.  And,  gentle- 
men, he  ordered  his  secretary  to  write  a  letter 
to  doctor  Markadal,  (I  shajl  not  pronounce 
their  names  well)  the  solicitor  general  and 
the  other  persons ;  and,  upon  that,  they  gave 
this  answer.  He  sent  the  5th  for  their  opi- 
nion ;    on  the  10th  they  gave  their  answer. 

•*We  received  your  excellency's  letter  of 
the  5th  instant,  with  twelve  articles  exhibited 
by  Anthonia  Fabriflras  annexed.  In  answer 
to  the  contents  of  the  said  letter,  it  appears  to 
as,  that  in  sundry  of  the  said  articles  he  men- 
tions and  represents  injuries  or  iin|>oBition8 
upon  the  troops  quartered  in  St.  Phillip's, 
which,  if  divulged  among  them,  might  occa- 
sion tumults  and  disonlers,  and  also  raise  mur- 
murings  against  their  proper  superiors,  of 
whom  they  are  suspicious,  and  hove  not  a  due 
regard  to  their  own  advantage :  from  which  it 
appears  to  us,  pernicious  consequences  may 
arise  in  military  discipline.  This  our  opinion 
we  submit  to  your  excellency." 

Upon  the  receipt  of  this  letter,  still  the  go- 
vernor was  determined  there  should  be  no 
person  unasked ;  therefore  he,  upon  the  receipt 
of  this  letter,  sent  it  with  Fabrigas^s  answer  to 
the  assesseur  criminal,  who  sits  as  the  assist- 
ant to  the  governor  in  trying  ofcivilor  criminal 
causes,  the  great  judge  of  the  island  under  the 
governor:  he  sent  to  him  for  the  sanction  of 
nif  opinion  upon  it.  The  answer  is  wrote  to 
the  secretary  of  the  governor,  and,  '  having 
examined  all  the  said  papers,  it  appears  to  me, 
that  the  opinion  of  the  siid  gentlemen  is  very 
learned  and  just.'  So  that  you  see  he  concurs 
entirely  in  opinion  with  those  other  gentlemen 
that  had  made  the  report  that  1  read  to  you  just 
now.  Gentle<nen,  when  this  was  done,  then 
and  not  till  then,  the  governor,  the  defendant, 

feneral  Mostyn,  sent  an  answer  in  form  to 
abrigas;  and  I  flatter  myself  that  you  and 
every  one  who  hears  this,  must  be  of  opinion, 
that  the  governor  acted  with  all  possible  cau- 
tion in  this  business.  He  writes,  therefore, 
Ihis  answer  \  for  you  set  the  other  had  pressed 


for  an  answer  in  writing,  and  would  have  it  in 
a  great  hurry  ;  bat,  however,  the  ^vemor 
would  not  give  an  answer  till  he  had  informed 
his  understanding  upon  the  subject,  by  all  that 
could  give  him  information  and  advice.  **  Un- 
derstanding that  Antonio  Alexander  Alhmundo 
bath  acted  in  olie^lience  to  the  directions  of  his 
superiors,  as  in  the  manner  practised  by  hit 
predecessors  in  the  said  suburbs,  by  those  that 
held  the  office  before  him,  as  it  appears  to  us 
(mentioning  their  names)  upon  a  charge  set 
forth  in  the  representations  made  by  Fabrigas, 
and  upon  the  other  part  by  the  said  petition  of 
the  people  there  to  attend  to  the  regulation  made 
by  governor  Johnston  [I  should  have  tokl  yon, 
that  all  the  Minorquins  there  prayed  it  miffht 
be  continued]  for  which  cause  it  is  not  regular 
to  receive  witnesses  to  justify  the  difierent  ar* 
tides  exhibited  by  Fabrigas,  some  of  which 
teem'  to  tend  to  disturb  the  public  tranquillity, 
in  prejudice  of  his  majesty's  service :  [now, 
^ntlemen,  remark  this]  notwithstanding  which 
if  Antonio  Fabrigas  is  sufficiently  entitled  to 
pretend,  that  Antonio  Allimundo  hath  commit- 
ted any  crime  or  misdemeanor,  he  is  to  apply  to 
the  royal  governor's  court,  aud  there  make  hit 
complaint  in  the  usual  form ;  where  he  wiU 
have  justice  done  him  according  to  law,  that 
is,  **  according  to  the  law  of  the  island."  Now, 
any  mortal  would  suppose  that  Fabrigas,  if  he 
was  not  possessed  of  a  most  malignant  and  tui^ 
bulent  spirit,  woold  hare  acquiesced  in  thit» 
and  taken  such  measures  as,  accfirding  to  the 
law  and  constitution  of  the  island,  were  open 
to  him,  and  not  have  plagued  and  teazed  the 
governor  with  reiterated  remonstrances  and 
complaints  in  matters  which  were  out  of  hit 
own  principal  power  to  relieve,  if  there  wat 
any  cause  of  complaint ;  though,  by  the  way, 
the  governor  had  the  strongest  reason  to  sup- 
l»ose  he  had  no  cause  ofcomplaint.  But  it  wat 
the  determination  of  this  man  to  drive  home 
every  thing  possible  to  the  governor,  and  to  tel 
up  an  opposition  of  the  Minorquins  subject  to 
his  civil  government,  and  the  garrison  subject 
to  his  military  guvernment.  The  unavoidable 
consequence  of  this  would  have  been  ihe  total 
loss  of  this  island,  and  infinite  bloo«1shcd,  which 
must  have  ensued  upon  the  revolt  of  this  island. 
However,  the  man  still  uses  a  great  many 
threats,  which  you  will  have  a  particular  ac- 
count of  by-and-hy.  The  governor  thought 
proper  on  this,  (since  yon  find  all  which  had 
been  done,  and  which  this  Fabrigas  complained 
of,  was  the  pursuing  the  regulations  which  had 
been  made  l>y  governor  Joliuston — you  will  be 
amazed,  perha{>8,  at  my  telling  you — it  is  the 
strongest  proof  of  the  lenity  and  moderation  of 
the  governor  that,  perhaps,  can  ever  be  ima- 
gined) in  order  to  see  whether  that  regulatioa 
was  a  rii^ht  one,  and  ou^-ltt  still  to  be  cuntinned, 
the  governor  summoned  a  meeting  of  the  inha- 
bitants, even  Minorquins,  the  inhabitants  of  thit 
district,  in  order  to  take  their  sense  of  the  so- 
vemor's  regulation,  to  sell  by  lots,  or  wlieiner 
that  regulation  should  be  abolbhed,  and  that  he, 
or  any  person  within  the  district,  mty  be  at 


Fabrigat  v,  Muili/n. 
I  wise  H  Tut  u  Otty  cm  anUer 
in  |iriw.     Ill  onter  lo  lisre  their  full 
!  nikltvr,  he  look   the  utmoKl  ciu- 
MK  iloclor  Markadal  anil 
tiled  all  ihe  iohabiUDU; 
e  ibey  nughx  be  at  lull  leisure  from 
>cvanl(,  (fur  it  »■«  about  the  time  of 
,  ifnm)  that  xhey  might  le  ut  full  leinure 
k  allnid  Bad  meet  logcllicr,  they  apjioioted 
■*  -'     -  -    ■  aSuiiday, 


abatwaftill  meeting.  Mr.  FabrigBs,iii 
tteMEBp  lune,  aaei  nil  ^aioa,  (as  if  an  e^tion 
■w  gBtBg  ftrwaril)  be  u»e>l  all  imaginary 
f»^»  V>  Itcl  together  at  many  people  u  he 
CmM  niMl«r  to  think  wiili  him,  and  lo  have 
■kit  infulalian  of  the  f;overtiur  aboliEhed,  aod 
Aaltbe  nmm  he  cumplained  of  might  he  put 
a  tad  V,  AnJ  the  matter  he  required  eoforced : 
taiOMb  wu  Ihe  tenieur  Ihe  inhabitants,  that 
lkar«  «m*  ■  laojoriiy,  I  am  told,  olmoat  tneniy 
load*,  of  all  the  lUinorquius  ivho  attended 
•fan  ilul  8«0riay  ;  all  uleaxed  with  what  bad 
hiMiknc  by  gofernor  Juhostnn,  and  desinmi 
ti  CMlia»«  'ibal  rvgiilation.  They  liiund  it 
■Ml  bmefieiaJ  to  them<el*eii ;  iliey  found  it 
MMsded  inlh  lewt  trouhk;  they  fimad  it  most 
hr  tbcir  |itofil:  ihey  hII  Were  acainat  their 
(^■(rynaMi  Palirii;a*,  and  all  prayed  tint  the 
■  ■■MUhiiunt  innde  by  noveraor  JnhntlOD,  and 
kid  MBtionnl  to  that  tiiue.  raii,'ht  tlill  be  used 
N^coDUaaed  withnulsiiy  ulteraliou.  Fabrigai 
•■•ow  Trty  much  diualiefieil.  Now  I  will 
mI  joa  a  it'w  abjection.  All  this  it  iinlawrul. 
hoBw  ii  ■*■!■  uo  a  (Sunday,  anil  the  tense  of 
tm  (nylr  laiten  upon  •  Sunday  is  no  sense  at 
^;  tititihrr  inmanre  oflhe turbnleiiceOf  his 
A^Mkm !  all  vai  nroni; ;  nud,  at  the  name 
M,  *  threat  thai  hr  would  now  prefer  a  peti 
ba.  aad  ke  wmjld  luke  care  llwl  there  should 
W  !■■  tanodred  men  aimed  at  hia  heels!  oow 
Itf  ar  nk  any  man  (hot  bears  me,  whut  the 
fBMHir  wa*  to  do?  The  goTermir  (whose 
qMwMiwt  Inferior  to  his  other  qualilieslhat 
■ir  Wf  th*  tliararler  of  a  gi  ntlemaii  and  a 
aMm}»W»wl  to  beio  ffightrned.  He  wai  a 
•■■((tM  prrvonal  tear  ;  and  ■  AliaonjMin  ap- 
pviiiil  «t  llie  head  of  t-to  hunilred  people 
«■■!,  Ih«u|t)i  it  i*  irrious,  and  deserves  consi- 
taawa^bxwei'rr,  ilie  governor's  spirit  iths 
■■b,  Ue  Jul  Hut  coiiToke  Hoy  force  in  order  to 
■^  fbii*  :  kul  bo  look  a  Tory  wise  step  ;  and 
kn  «■•  (for  the  upki  dny  wa»  the  time  of  this 
^■nvdiua  h«  had  cauM  lo  apprehend,)  he 
|ti«  ■•  latitation  l<i  Ihe  comuiiodiiig  nlKcers 
■r  Ike  4dT«rrot  >«Kiii>enli  to  meet  him  next 
^mwtmg  %  mhI  if  ih'  te  Itud  been  any  force  at 
llr  herb  af  Mr.  Fobritcax,  the  comuinnding 
ittMfa  beiW  Ibni  .ii  the  honse,  it  would  not 
Mvapaiiy  liiuir,  iiFrhapa,  to  summon  iheir 
tan  M  trprt  it :  but  lio  wnuld  not  sumtiion 
fta  hetr  •>  Ihr  laland  any  farther  than  I  tell 
j-^.  Ai  ihi'  liiii«  llii*  pctilioo  irns  lo  be  pre- 
>  -MrJ  by  t'«briu>u  <*ith  two  hundred  itieo  at 
w«ti — 1  inittake  ;  lb*  |ii>litiaa  vras  then 
-Tiaiil.   aad  hc  WOUU  COOM  for   Ul    UUWtr 


A.  D.  1779. 
(he  next  morning  with  a  fore«  of  300  men  at 
his  heela — the  govero'ir  thought  proper  to  ask 
the  advice  of  the  officers  who  attended  there, 
nhal  ought  to  be  done  with  this  man,  and 
what  wan  lit  to  be  done  ?  Every  on«  of  tha 
officers  who  allended  upon  the  occasion  con- 
curred in  the  opinion — and  it  was  a  matter 
alwut  wbich  I  think  there  iwuld  not  be  two 
npiiiioQs, — that  nothing  was  safe  lu  he  done, 
b<it  iuimediaiely  laying  hold  of  this  man  tha 
first  opportunity,  and  sending  him  out  of  the 
island.  And  he  did  so.  Theru  is  the  cniu- 
plainl.  Now,  gentlemen,  I  have  let  you  into 
tbe  whole  history  why  this  was  dooe  that  Fa- 
brigas  coiDplaios  of ;  why  Fahrigas  was  kept 
(ilose,  OS  he  complains  ol.  A  mau  that  threat- 
ened an  insurrection  in  the  isbnd,  it  surely 
would  be  imprudent  io  the  governor  la  luiTer 
any  of  his  friends  io  the  inlaDil  lo  have  access  to 
him  :  general  Moityn  therr  lore  sent  him  off  as 
soon  as  possihle,  which  I  believe  was  in  li)ur  or 
live  days,  into  Spain,  with  a  prohibition  to  re- 
turn to  the  island  again  within  the  cuune  of  a 
year.  Hut  all  this,  say  they,  this  is  Ivranoica), 
this  is  arbitrary ;  this  u  w  hut  English  ifotem- 
Rient,  anil  English  laws,  and  an  Eiigli.'in  court 
of  jiietice  cannot  bear,  tiay  Ihey,  it  is  a  very 
improper  behnvicmr  io  governor  ftloslyn.  aoil 
onghl  lo  be  Ihe  aiilj|ect,  the  mailer  of  a  civit 
action  :  Mr,  Pabrigas  therefore  does  very  right 
to  lake  a  voyage  over  to  England,  lo  coma 
here  lo  Guildhall,  and  take  Ilie  senne  of  an 
English  jury  uprin  governor  Moilyii's  beha- 
viour. Lei  me  ubserve  lo  you,  ihis  is  uol  » 
□uvel  proceeding;  for thougfi,  very  liirtunateljr 
for  governor  Hostyn,  it  is  the  liriil  lime  that  ha 
lias  had  ati  occasion  lo  behave  in  tliis  way,  and 
to  proceed  in  this  particular  manner ;  yf  I  liir- 
raer  goveriiorti  of  Ihis  istatid,  upiin  much  lesa 
occasions  and  emergencies  ihan  this,  have  dona 
the  very  like  thing.  Do  not  be  aHloniahcd. 
geollemen,  nor  lei  it  fright  you,  when  I  tell 
you,  that  the  guvernor  hai  an  obioliile  right  ti» 
do  it,  and  is  accuuulable  to  nobudy  but  tlia 
privy 'Council.  The  governmeot  of  that  l^lauj 
IS,  io  many  respects,  an  arbiirary  government, 
and  as  desjiotic,  io  many  instances,  as  any  of 
tbe  governroeola  in  Aaia,  |iarticnr<rty  in  the 
part  now  in  queition  ;  and  |el  governor  Alos- 
tjD  would  Iw  »orry,  for  his  own  character'a 
sake,  if  it  was  in  his  power,  to  take  any  legal 
advLiniagei  coDCcniing  tbe  impropriety  of 
bringing  ihe  action  here  in  Englund.  Hia 
character  calls  upnn  himf  which  is  lo  him  the 
Srst  of  all  considerations,  to  explain  his  con- 
duct in  the  fullest  manner  possilile.  A  general 
acquittal  of  liiffl  upon  the  idea  that  the  law 
won't  punish  him,  would  be  but  a  poor  s&lis- 
faciioii  IO  governor  Moslyn,  ivbo  is  charged  in 
this  action  with  having  exercised  a  tyrannical 
power,  tietilleineu,  the  general  tenor  of  the 
trenerat's  behaviour,  from  the  time  of  hia  being 
first  appointed  lo  this  government  live  yeura 
Dgo,  to  the  moment  belast  left  the  ialarnl,  has 
been  to  preserve  and  to  maintain  onler  and  good 
govecnnient,  wiihont  a  wish,  or  rather  with  an 
Bblioneute,  to  opprcissny  one  man  Ibat  is  un^c 


115] 


U  GEORGE  III. 


Action  Jbr  Fahe  Imprisonment-^ 


Ciia 


his  gorernment  there:  least  of  all  could  he 
€ver  wish  to  oppress  or  injure  this  maD,  too 
incousiilerable  iu  bis  own  particular  private 
•tatinn  of  iii'e,  too  remote  from  a  counexion  or 
acquaintauce  with  the  governor,  for  him  to 
have  made  him  the  object  of  vindictive— 1 
voii'tcall  it  justice,  but  of  any  vengeance  or 
resentment  upon  any  occasion  whatsoever. 
When  the  man  made  a  complaint,  he  wished 
to  enquire  into  the  grounds  of  it ;  aud  when  he 
found  it  was  groundless,  aud  the  man  reiterated 
tlie  complaint,  however  he  might  be  teazed  by 
this  reiterated  complaint,  (for  it  is  grievous  and 
troublesome  to  a  man  to  be  teaz^  with  new 
remonstrances  and  petitions,  when  he  sees  the 
impropriety  aud  impossibility  of  granting  what 
M  requested)  still  takes  all  possible  occasion  to 
enquire  into  the  grounds  of  the  complaint,  to 
answer  the  complaint.  But  when,  after  every 
means  had  been  tried,  the  man  threatens  the 
dissolution  and  destruction  of  government  in 
the  island,  it  became  bis  duty  then  to  treat  this 
with  some  seriousness :  and  yet  for  the  general 
^^d  of  the  island  he  did  it,  never  complaining 
of  these  two  hundred  men  that  were  to  be  arm- 
ed, only  laying  hold  of  the  man  himself,  and, 
as  soon  as  a  ship  could  be  got,  to  send  him  out 
of  the  island.  And  now  governor  Nostyn  is 
called  upon  in  an  action.  The  laws  of  a  foreign 
country,  gentlemen,  are  matters  of  fart  here; 
and  it  is  very  well  worthy  consideration — it  is 
very  well  worthy  of  consideration  indeed  (I  do 
Dot  mean  to  trooble  you  with  a  discussion  of 
that  question ;  but  since  his  lordship  has  hinted 
about  it,  it  is  very  well  worthy  of  consideration) 
whether  such  conduct,  upon  such  occasions,  in 
auch  a  place,  can  be  the  subject  of  litigation  in 
a  court  of  justice  in  England;  it  is  very  well 
deserving  of  consideration.  I  know  very  well, 
upon  a  former  occasion,  when  an  action  wua 
brought  against  the  governor  of  the  island  of 
BarlKidoes,  by  a  man  who  succeeded  in  his 
absence  to  the  government,  without  any  parti- 
cular aj^pointment  so  to  do,  and  having  been 
guilty,  in  the  governor's  absence,  of  some  mal- 
practice, (he  was  ap|)oiuted  by  him,  but  had 
not  t(K>k  the  oath)  there  was  an  action  iu  that 
case  brought  against  the  governor  for  some 
proceedings  against  his  deputy,  as  was  the 
subject  of  an  action,  and  there  was  judgment 
in  that  case  given  for  the  plaintifi' ;  but  a  writ 
of  error  being  brought,  and  that  beincf  removed 
afterwards  to  the  House  of  Lords,  that  judg- 
ment was  reversed.  As  well  as  1  recollect  it, 
one  of  the  chief  grounds  iubistcd  upon  on  the 
part  of  the  defendant  was,  that  being  a  matter 
abroad,— (for  that  it  was  upon  de^Hurrer  to  a 
plea)— that  being  upon  a  matter  abroad,  it  was 
not  cognizable  by  the  courts  of  justice  in  Eng- 
land.    In  answer  to  that,  it  was  insisted — 

Court,  Was  it  not  the  main  question  in  that 
trial,  whether  the  council  of  state,  or  the  go* 
f  eroor  of  Barbadocs,  had  a  power  to  commit  ? 

8erj.  Duvif,  That  was  a  question.  I  have 
■ir  Bartholomew  Shower's  parliamentary  cases 
Upon  the  table. 

Ctmrt.   I  think  the  courts  held  they  had  no 


power  to  commit :   the  House  of  Lords  held 
they  had  a  power. 

Serj.  Davy.  Your  lordship  will  find  the  par* 
ticular  reason  of  the  reversi(»n  of  the  judgment 
is  not  stated,  but  only  that  the  judgment  waa 
reversed.  But  one  of  the  particular  reasons 
was  that  the  island  might  be  governed  by  par- 
ticular laws,  and  that  he  was  not  responsible 
here  for  what  he  did  there.  To  this  it  was  an« 
swered  and  insisted  upon  by  the  other  side,  that 
they  were  governed  by  English  laws;  that 
they  were  not  a  conquered  country ;  that  thej 
were  inhabited  by  tlie  subjects  of  the  crown  oif 
Great  Britain,  who  came  of  English  or  Briiau- 
nic  subjects,  going  from  Great  Britain  to  thai 
country  to  reside  and  settle  there,  and  were  not 
like  the  case  of  a  conquered  country.  The 
reason  of  it  does  not  appear.  Upon  that  re- 
port, the  House  of  Lords  thought  proper  to 
reverse  the  judgment.  In  the  present  case, 
see  how  strong  it  is !  for  every  objection  made 
upon  that  case  applies  with  double  force  here. 
Suppose  it  comes  to  that  question  of  law,  will 
not  that  question  be  of  too  great  magnitude  for 
me  to  say  a  single  sy  lluble  about  it  ?  This  that  I 
have  now  mentioned,  and  your  lordship  has 
gone  before  me  in  what  I  was  going  tosav,  is 
a  very  important  question  of  law  indeed;  a 
very  great  question ;  a  question  of  the  first 
magnitude,  and  which  will  therefore  deserve  to 
be  discussed  and  determined  by  the  highest 
court  of  justice  this  kingdom  is  acquainted 
with.  It  is  a  question  of  infinite  difficulty  and 
great  im|>ortance,  with  regard  to  the  respon* 
sibility  of  the  governor  in  a  conquered  island, 
with  respect  to  their  being  amenable  to  foreign 
sub^ts,  with  regard  to  being  aooenable  Tor 
their  conduct. 

Serj.  Glynn.  They  are  the  descendants  oC 
foreigners,  all  of  them. 

Sei].  Davy.  1  mean  those  that  are  bom  in  Ui*. 
norca,  that  descend  from  the  ancient  inhabitants 
of  the  island.  They  are  subject  to  be  governed 
by  whatever  laws  the  king  of  Great  Britain 
shall  think  proper  to  impose  upon  them.  The 
king  of  Great  Britain  may,  if  he  pleases,  alter 
his  government  of  that  island,  and  give  what 
laws  he  pleases  under  a  general  ratification ; 
and  they  are  all  bound  by  it.  I  say,  a  discus* 
sion  of  that  question,  as  a  question  of  law,  is  of 
great  magnitude.  I  do  not  mean  to  trouble 
you  with  It.  To  be  sure,  it  is  too  much  for  my 
grasp ;  it  is  too  much  perhaps  lor  the  grasp  of 
any  one  man  sitting  in  judgment,  much  more 
for  roc  standing  here  as  a  counsel,  who  have  no 
judgment  at  all,  only  a  duty  i  owe  my  client ; 
and  perhaps,  and  most  probably,  it  n  ill  beaquea* 
tion  to  be  referred  to  the  determination  of  the 
court  above.  And  you,  at  the  same  time,  will 
certainly,  if  you  think  nmper  to  find  a  special' 
verdict  in  this  cause,  which  I  suppose  you  will, 
you  will  do  well  to  consider  the  subject  with 
regard  to  the  damages,  which  we  call  contin* 
gent  damages ;  it  was  therefore  exceeding  fit.- 
to  mention  all  those  circumstances  to  you,  not 
only  with  regard  to  the  matter  of  fact,  but  also . 
tor  your  considivatioa  with  regard  to  th», 


libe 


k.  •» 


117]  Tabfigai  v.  Mosiyn. 

^UMfCi.  For  iappo*  (it  is  upon  that  ground 
I  mw  aiMren  you)  rappoie  the  go? enior  tnis- 
fmktbe  law  apon  this  oocasion;  suppose  be 
fns  wrong,  and  ought  not  to  ha?e  proceeded 
kiis  way  ;  suppose  that  notwithstanding  all 
fbf  spinloiis  he  had  look,  as  well  from  the  ciTii 
in  ttieir  different  departments,  the  law 
•ad  the  aitcsieur  judges,  and  so  forth, 
1  bT  all  the  military  officers,  whom 
bled  together  upon  the  threat  of  the 
suppose,  notwithstanding  all 
opinions,  he  ought,  instead  of  doing 
km  did,  rather  to  have  kept  this  man  a 
,  and  brought  him  before  some  tribunal 
tried :  suppose  that  ought  to  be  his  con- 
that  therefore  he  did  wrong,  instead  of 
insprisoa  the  man  immraiately,  and 
him,  upon  his  own  authority  ;  now  to 
W  sore  the  assessment  of  damages  b^  tou 
■■St  go  upon  that  supposition.  I  think  I 
speak  airiir  upon  the  occasion :  1  mean  in  this 
and  aO  other  occasions  to  act  with  character : 
I  suppose  that  to  be  so :  what  mighty  damages 
s^fht,  oo  that  occasion,  to  be  giren  against  Uie 
teteiuui  ?  He  in  that  instance  mistook  the 
fiae  of  his  duty ;  he  acted  as  he  thouffht  for 
dw  best,  lor  the  safety  of  the  bland ;  but  he 
acted  sroctpitately.  Why,  let  Mr.  Fabrigas 
er  bis  menos  (for  I  do  not  know  whether  he  is 
in  Ksgland  himself  or  no),  let  them  pnt  one 
•uesiisD  to  themselves  to  decide  it.  If  (reneral 
MsrtWB  bad  done  the  thin^,  the  not  doing  of 
wlien  they  now  complain  of;  if  ffeueral 
Hastyn  bad  brought  this  man  to  a  trial,  what 
■ifbt  liaTc  been  his  fate?  The  least  sorely 
8Mld  hare  been  that  which  he  now  complains 
iC,laaishnient  for  a  single  year;  for  with  re< 
'  W  iho  imprisonment,  it  is  not  an  unusual 
any  country.  Upon  great  and 
occasions,  it  is  not  an  unusual  thing 
fine  a  man  for  a  few  days,  and  debar  him 

0  of  his  friends :  that  is  not  an  extra- 
tbiog.    But  suppose  in  that  he  did 

1  will  suppose  the  whole  to  be  wrong. 
IVbeieiu  is  it  wrong?  It  is  wrong  from  a 
Misapprehension  of  judgment,  from  a  mistake: 
m  is  wnmi^  merely  in  respect  to  mistake.  It  is 
■St  wroog  from  malice,  from  wilful  wicked- 
ness towards  this  man,  from  a  tyrannical  dis- 
Miiioo,  from  a  desire  to  oppress  or  hurt  him. 
If  ibia  bad  been  the  case ;  if  the  governor, 
icspoctable  as  his  character  is,  could  for  a  mo- 
be  suspected  to  be  capable  of  acting  in 

nanoer,  from  tyrannical,  cruel,  or  wicked 
vrs,  be  would  hare  done  ill  to  call  upon 
to  be  bis  advocate  ;  for  though  even  in  that 
t  1  would  discharge  my  duty  towards  htm, 
I  could  not  have  spoke  with  cheerfulness  for 
But  here  1  consider  him,  and  the  whole 
of  bis  conduct  bids  me  so  to  do,  as  a  gen- 
wiiling  to  discharge  his  duty  to  the 
erawa ;  to  preserve  this  island,  as  it  was  his  duty, 
Is  Um  comoioawealth  of  England ;  willing  to 
da  ill  that  was  good,  right,  and  just,  without 
■lyvimkctive  oaotave  to  this  man,  to  whcm 
be  io  a  atrasiger.  But  upon  this  occasion  the 
r  wUTpafdowttey  if  1  take  notice  upon 


A.  D.  1778. 


[118 


this  occasion,  of  what  is  too  well  known  ewn 
to  be  questioned,  his  general  eood  character. 
And  yet  I  have  less  need  to  ask  his  particular 
pardon  upon  this  occasion,  because  that  gentle- 
man from  whom  I  received  mv  instructions, 
the  attorney  in  the  cause,  has  nlled  my  brier 
with,  I  think,  not  less  than  thirty  of  the  first 
names  in  this  kingdom,  who,  I  am  told,  are  all 
attending  here,  or  within  a  moment's  call  from 
this  hall,  some  of  the  most  respectable  charac- 
ters in  this  kingdom,  some  of  the  highest  rank, 
and  gentlemen  of  the  first  character  in  this 
kingdom,  to  tell  vou  that  thev  have  at  different 
tiihes  served  under  general  fifostyn,  and  that 
they  do  not  know  in  all  t^eir  acquaintance,  a 
man  of  a  more  cool,  dispassionate  temper,  a  mail 
of  greater  character,  humanity,  and  justice, 
then  general  Mostyn ;  as  celebrated  for  it  tia 
any  man  of  any  rank  or  of  any  degree  of  ho- 
nour in  the  world ;  and  yet  general  Mostyn 
must  be  supposed,  in  order  to  justify  vindictive 
or  exemplary  damages  upou  this  occasion,  must 
be  supposed  to  be  actuated  by  motives  which 
his  heart  abhors,  and  which  motives  nevcfr 
actuated  his  heart  a  moment  in  his  life.  I 
leave  it  upon  this  idea,  that  if  he  has  acted  im- 
properly m  every  step,  yet,  upon  the  idea  of 
Its  being  a  mistake  in  general  Mostyn,  I  appre- 
hend tM  plaintiff  has  no  right  to  expect  exem- 
plary damages. 

Serj.  Burland,  I  suppose  it  is  a  fact  ad- 
mitted between  us,  that  this  is  a  conquered 
island,  ceded  by  the  treaty  of  Utrecht? 

Mr.  Lee,  Minorca  was  ceded  to  this  crowft 
by  the  11th  article  of  the  treaty  of  UUrecht. 

James  Wright^  esq.  sworn. 
Examined  by  Serjeant  Burland. 

Q.  You  resided  some  years  in  Minorca  f'-^ 
A,  From  about  January  177 1,  to  the  middle  of 
1772. 

In  what  character? — As  secretary  to  the 
governor. 

To  Mr.  Mostyn  ?— Yes. 

You  know  the  division  of  the  island,  do  you  ? 
—Yes. 

What  are  the  districts  they  are  divided  into? 
—I  believe  originally  five;  but  two  are  blended 
together,  that  there  now  are  but  four. 

Do  you  mean  to  include  in  one  of  these  dis- 
tricts the  suburbs  of  the  fort  of  St.  Phillip's  f 
— ^They  never  do,  when  speaking  of  them  ; 
that  is,  extrajudicial  of  the  common  officer  of 
the  island. 

Under  whose  particular  jurisdiction  is  that  ? — 
I  always  understood  it  to  be  under  the  direc- 
tion of  the  governor. 

What  do  you  call  that  district  ?— The  arra- 
val  of  St.  Phillip's. 

Are  you  sure  you  understood  it  to  be  distincfi 
and  separate  from  all  the  other  districts  ?— 
Yes ;  insomuch  that  I  was  always  led  to  be- 
lieve, and  told,  that  no  magistrate  of  Mahon, 
which  is  the  district  next  adjoining  to  it,  ever 
did  go  there,  or  could  go  there,  to  exercise  any 
sort  of  function,  without  leave  had  of  the  go^ 


i 


119] 


14  GEOROE  Iir. 


Ac^oHfir  Falte  Imprisonment— 


[IfO 


▼ernor ;  and  whenever  there  was  oocasioii  to 
■end  an  V  of  them  down  there,  the  fort-major 
received  orders  for  their  admission. 

Are  these  laws  varietl  at  any  time,  and  by 
what  authority  ? — ^The  island  is  governed  by 
iBpanish  laws,*  subject  to  be  raried  by  the  go- 
Ternor,  with  regard  to  all  interior  matters.  A 
proclamation  of  the  governor  is  as  binding 
there  to  try  a  man  upon  a  trespass,  as  any  laws 
whatsoever,  subject  to  be  varied  by  the  order  of 
the  governor ;  not  in  respect  to  property,  not 
with  ref^ard  to  mtum  and  tuum^  but  with  regard 
to  the  internal  police. 

What  do  you  mean  by  proclamation  ?— That 
if  the  governor  issues  a  proclamation,  and  in- 
flicts a  penalty  for  the  breach  of  it  all  over  the 
island,  and  if  any  person  is  guilty  of  the  breach 
of  that  proclamation,  he  is  subject  to  the 
penalty  of  it,  and  for  want  of  payment  is  im- 
prisoned. 

1  suppose  you  mean  they  enforce  an  obedi- 
ence to  that  proclamation  by  imprisonment  ? — 
There  is  there  the  chief  justice  criminal,  and 
Uie  chief  justice  civil :  both  have  their  separate 
courts.  If  the  governor's  proclamation  is 
broke  with  any  penalty  annexed  to  it  of  impri- 
sonment or  fine,  the  man  is  seized  and  brought 
into  that  court :  the  proclamation  it  exhibited 
a^nst  hiia,  and  by  that  he  if  condemned  to 
cither  fine  or  imprisonment,  thougl)  that  prochi- 
nation  was  made  perhaps  but  the  day  before. 

According  as  that  proclamation  afllects,  whe- 
ther a  civil  or  criminal  matter  ?— I  do  not  re- 
collect any  of  a  civil  matter. 

Court.  W  bat  are  the  nature  of  the  proclama- 
tions yon  are  speaking  of? — A.  In  all  the  me- 
morials presented  to  toe  governor,  be  issued  an 
order,  that  no  memoriab  or  petitions,  ^except 
ibr  mercy,  should  be  presented  to  him  without 
l><^ng  signed  by  an  advocate  admitted  in  the 
tonrts. 

Q.  You  mean  governor  Mostyn  issued  this  ? 
—4.  yes. 

Whether,  though  the  Minorquins  by  the 
treaty  of  Utrecht  are  governed  by  the  Spanish 
laws,  yet  whether  our  government  here  do  in 
ifact,  or  not,  from  time  to  time  make  alterations 
mod  regulations  in  those  laws? — The  king  in 
ooun'cil,  upon  all  occasions  of  application  to 
them,  issues  out  such  orders  as  the  case  re- 

auires,  and  they  are  recorded  in  the  royal  court 
here,  and  are  as  binding  as  any  laws  what- 
•oerer. 

They  are  registered  there,  are  they  not  ? — 
Yes. 

What  do  you  call  the  royal  court? — The 
court  of  royal  government  is  the  criminal  and 
the  civil  court. 

You  know  Mr.  Fabrigas  f — Perfectly  well. 

What  is  he  in  the  islaod  f — I  was  directed 
by  governor  Mostyn,  who  was  very  much 
tea2ed  by  his  repeated  applications,  to  enquire 
what  sort  of  a  man  he  was. 

*  As  to  the  laws  which  thoold  prevail  in  a 
fiOMuered  country,  see.  the  Cite  M  Ibe  isliod 
•fGrtMMla,a.p.  1774. 


Firat,  as  to  hia  (joality  in  the  island ;  what 
station  is  be?— His  father  holds  some  vioe- 
yarda,  very  amall.  He  himself  I  believe  ac- 
tually, for  his  bread,  labours  and  din  and 
prunes  the  vineyards,  and  talks  and  cbatteni 
about  politics  perhaps  five  days  out  of  six.  It 
has  been  repeatedly  said,  Mr.  Fabrigas  is  a 
man  of  property.  I  believe  he  had  at  that 
time  no  property  upon  the  earth.  General 
Mostyn  ordered  me  to  make  enquiry,  and  that 
was  the  result  of  it. 

We  know  what  the  station  of  general  Mostjfi 
is ;  that  he  was  then  and  is  now  lieutenant- 
governor  of  Minort'A ;  that  he  is  commander  of 
a  regiment,  and  a  man  of  family  :  what  is  hif 
character  as  a  man  and  as  an  officer  ?  Is  he  a 
man  of  humanity  ?— 1  believe  as  much  so  as  it 
is  poHsible  for  a  man  to  have ;  that  is,  in  my 
opinion.  I  have  seen  much  of  him.  I  do  not 
believe  there  exists  in  the  world  a  man  of  ten- 
derer feelings,  for  any  ill  efiects  that  may  be 
produced  from  liim. 

Is  that  his  general  character? — I  believe 
him  to  be  much  more  so  than  common.  I 
think  that  is  his  comluct  that  will  be  found 
upon  every  enquiry  that  can  be  made  of  him. 

And  it  lias  been  so  under  your  own  know- 
ledge ? — I  am  sure  of  it :  1  have  had  many 
opportunities  of  seeing  the  working  of  it  in  a 
very  surprising  manner. 

Will  you  let  us  know  as  much  as  you  do 
know  of  this  transaction  between  Mr.  rabrigaa  * 
and  the  governor? — May    I;  refer  to  some 
minutes  I  have  here  ? 

Counsel.  Yes. 

Serj.  Olynn.  Did  yon  take  them  At  the 
time? — A.  No;  but  all  within  three  days. 
1  hope  I  ahall  be  excused  \\'  I  should  make  any 
mistakes  in  respect   to   date.     Mr.   Fabrigae 

S resented  a  memorial,  1  lielieve  to  myself,  to  be 
elivered  to  governor  Mostyn — that  was  the 
dlst  of  July  1771— complaiuinir  that  Mr.  Alli- 
mundo,  the  mustastaph,  the  only  officer  in  ibe 
arravaW— 1  think  that  was  the  first  petitioo, 
complaining  of  some  abuses  in  buyinif  wine. 
The  governor  said,  What  does  the  fellow  want  f 
He  bid  me  order  Allimundo  to  answer  ii,  lor  be 
knew  nothing  about  it.  I  sent  for  Allimundo 
op  to  the  heHd-quaners.  The  musiaNtapb  ie 
the  only  civil  officer  of  8t.  Phillip's  that  is,  in 
the  arraval :  he  is  put  in  by  the  governor,  and 
turned  out  by  him  at  pleasure. 

Did  you  order  Allimundo  tf>  give  in  an  an- 
awer  to  it  ?— -I  sent  for  him,  and  desired  him 
to  come  up  to  me.  I  gave  him  the  memorial, 
and  told  him  it  was  the  governor's  order  that 
be  answered  it.  Upon  Allimundo's  answer 
coming  op,  it  was  read  to  the  goiernor. 

Coufuel.  That  answer  is  dsted  the  8ib  of 
August  1771  ? — A.  I  read  it  to  the  governor* 
The  governor  ordered  me  to  tell  Mr.  Fabrigae 
and  Allimundo,  bv  an  interpreter,  that  he  wee 
rerv  well  satisfied  with  the  defence  Allimundo 
bad  made  to  Fabrigas's  charge.  I  told  tbfa 
both  ao.  Fabrigas  came  again,  and  desired  Ie 
see  the  defimce  that  AUimundo  bad  made.  I 
loM  bun  I  was  not  aatboiiicd  to  tbew  it  binii 


«w«HI  AwkU« 


Fabrigas  v,  Muttyn- 
%  m>lter  for  him  to  de- 
iMfti*  He  cmhc  again  llir  next  day,  or  tba 
fcf  •Aer,  ^(iog  in  annther  mpmorit),  cleiiriug 
Itelkal  mi|^t  be  shewn  lo  the  gforemor. 

CamiL  That  vm  delivered  Ibe  131h  of 
A^omT — A.  Yei:  in  ihnrt,  deaitinr  to  see 
Kr  jouificntinD  of  Allimuodo,  and  shimnE  the 
p^a4  of  bis  compUini,  aad,  I  thiak,  Rddiog 
«Mfacr  antcle. 

tarn  akeiveri  theic  two  nemorialR  to  the  ga- 
•fiMrf— 1  did.  GoT«rnor  MoMjn  ordered 
Itu  Dr.  Mafkadat,  «ho  then  acted  as  cliief 
JMicB  ci'i],  ^ould  rec^Te  and  Itear  any  cntn- 
fbMa  lluit  Fabri^RB  had  to  make  agiiiusl  Alli- 
■mA*  ;  uid  he  addeil  lo  bim  th«  ail*oeaIe  tis- 
cri.  Ike  Mcmid  officer  in  llie  island  Ihat  acts 
•ate  Ike  king'*  cammission :  the  chief  iuitice 
(Kd  is  lite  fint,  the  chief  justice  crimiDal  is  the 
sBCMul.  the  Bdvocite  fiscal  is  the  third,  next 
rfb*  thai  pxemor ;  he  gave  Ihem  authority  to 
waA  tor  papers  and  penons,  and  whataoeTet 
Mfkl  Iw  iueful  in  the  enquiry  in  his  name. 
B*  By  (Dtmeranduin,  I  think  it  nag  the  SOth 
«f  AntfOBt,  Ihal  these  tno  law  trentleioen,  aa 
rs,  met,  and  ordered  Fabrigas  and 
who  were  thpn  present,  to  attend 
ihtm  Ike  93il  fallowing.  It  may  be  nrcessory 
I*  akMrrr,  iliat  ihough  these  tiva  gentlemen 
■m  IbTD  aiilio^  in  ihfir  own  viril  cnurts, 
■kay  aoed  as  cuiumissioners  of  enijuiry,  be- 
owielkc  mwi  oaa  one  of  ihe  arravBl  of  Hi. 
nilkf**.  i  won't  charge  my  memory  by 
mtk,  kol  1  am  *ery  sore  they  had  a  se|iarate 
^■[■■Imiob  nn  purpose  imder  the  governor's 

Wm  ibe  iiHiuiry  made? — On  the  93d,  Fa- 
too*  (tertsied  h*  would  proceed  nn  I'urlher 
iStewM  allowed  to  see  the  defence  Ihut  Al- 
k««ia  had  made,  and  given  in  lo  the  go- 
■  II  w. 

Where  «»■  ihni  declaration  maile? — In  the 
aswt  batoie  ihc  cum tuiisi oners.  Mr.  Fabtigas 
fmamiA  a ibird  incmoriBl  lo  truvernor  Mosiyn, 
Mfioc  bu  hinif  more  than  what  be  had  said 
M*r  Ik*  eiiinroiMioners,  ihni  he  cnuld  not 
■w.**!  uU  he  had  seen  AJIiatundo's  answer  to 

brtorr  ihe  ihiid  memorial  llial  was  present- 
ai,  haJ  ihr  ciKDinUtioiiers  luade  any  report  T 


8rr)  lUrlmd.  Tiiat  is  the  third  memorial, 
ciMUiauis  the  \i  articles  he  exhibits  against 

Q  (.'an  Tooflilhedaieiolhat'— J.  I  think 
a  owfl  hrhelween  the  33d  aad  36tb  of  August. 
r>r«nal  SliMlya  refirrred  him  to  the  commis- 

Wbat  VM  done  afterwards  7— The  commis- 

lannpartad  lo  the  i;overDor,  that  Mr.  Pa- 
-.•aa,  ky  Iba  manner  of  his  carrying  on  ihis 
>'  ■  ■■tioa  apviul  Allimundo 

»  hw  waalbeif  report  r-The  a4tbof  August, 
'  >aiafina:  here  is  their  re)iort. 

L^art.  I  dan  <•;  lhi>  report  he  is  ipeaking 


un 


Seij.  Davy.  I  took  a  great  deal  of  pains  lo 
collect  dales,  and  I  did  it  from  Ihe  cuoieots; 
I  believe  they  were  rigbi,  r«  J  opened  it. 

Wri/iht.  There  were  two  reports,  one  Ihe 
3:slot  August,  the  other  ihe  4ih  of  September, 
thai  Fabrigss,  by  the  manner  of  carrying  on 
ihis  charge,  intended  to  mt*  dissentinn. 

Serj.  Duvy.  Mr.  nrighl.  I  find,  confoan^ 
Iwo  reports  togellier:  it  is  the  third  report 
where  Ihey  report  thst  it  is  tn  hi'eed   sedilion. 

Q.  Then  be  presented  this  third  memorial 
oonlainioft  the  13  articles  f 

Mr,  Just.  Gould.  My  brother  Davy  staleit, 
that  it  WDS  Ihe  lOlh  of  September  Ihak  thej 
took  notice  of  the  articles. 

Q.  Was  there  another  report  about  the  lOlh 
of  SepleroberF — A.  Yes,  there  is.  On  Ibe 
SGtb  of  August  the  governor  ordered  me  to 
desire  the  ctimioal  chief  justice,  and  the  civil 
chief  justice,  Ibe  advocate  fiscal,  and  the 
aecretDry  to  the  conrl  of  Ihe  royal  govern- 
ment, to  come  to  me  next  mnrniiig,  ihal  be- 
ing the  96th.  Fnbrigas  came  there,  task- 
ed him  in  the  governor's  name,  by  an  inter- 
preter, what  he  meantj  whelhera  civil  prose- 
cution to  recover  damages  against  Allimundo, 
which  be  had  sustained  ?  or  whether  he  meant 
In  make  an  eiamide  of  him  for  any  abuse  be 
bad  commiltediu  hisnfficef  These  gentlemen 
were  prearnt. 

•  What  answer  diil  he  make  ? — None ;  1  eoutd 
get  noansivcr  from  him. 

Serj.  Davy.  That  is,  upon  the  arlicles. 

Court.  Is  that  subsequent  lo  the  delivery  of 
Ihe  articles  F 

Serj.  Dofy.   Yes. 

Q.  This  question  arose  upon  bis  presenting 
the  13  articles  lo  ihe  governor  f — A.  Upon  ih* 
whole  uf  his  cuoduct. 

But  that  was  alter  he  presented  the  articles  f 

What  did  he  say  to  Ihal?— He  said  nothing. 
I  desired  him  lo  make  some  kind  of  answer, 
Ihal  1  might  tell  Ihe  govenior.  Hisanswerat 
last  by  eklnrtioD  was,  that  if  1  would  give  him 
a  quarter  of  an  hour,  be  would  go  and  come 
back  with  an  answer. 

Ileing  cnnfuundeil  at  the  question  at  first,  and 
giving  no  answer  for  some  tinie,  at  length  be 
said  that? — lie  did  nol  know  which  he  wanted 
nor  what  he  wanted.  He  gave  no  answer  at 
last,  but  Doty  asked  that  he  micht  bate  n  qoar- 
let  of  nn  hour.  I  told  bim  that  he  was  not 
cniiiined  loaquarier  of  nn  hour  ;  bulil  being 
theu  between  lO  and  1 1  o'cluck,  I  behered  that 
they  would  be  so  attentive  to  him,  that  he 
might  call  again  at  t9  o'clock  if  he  pleased. 
He  came  back  again  wiibin  the  lime,  and  gaf* 
noiicc  that  he  meant  a  civil  aclion- 

Serj.  G'ynn.  I  would  not  interrupt  Ihis  CTi- 
dence,  as  it  does  not  spprar  to  be  ul  great  con- 
sequence lo  na;  but  I  submit  10  your  lurdship, 
whether  this  is  properly  evidence,  Ihe  answec 
being  conieyeil  lUrougn  aa  interiiretci  f    and 


1S3] 


U  GEORGE  IIL 


Action  Jar  Fake  Ifaprisonmeni'^ 


[1S4 


whether  the  ioterpreler  ihoold  not  be  produced, 
who  knows  what  answers  were  mea  ? 

Mr.  Lee.  We  are  now  to  take  the  answer 
from  a  man  that  does  not  know  what  the  ques- 
tions were,  in  a  lang^oage  the  witness  does  not 
understand,  and  consequently  cannot  report  if 
there  were  any,  or  what  answers  gfifen ;  where- 
as there  is  a  man  li? ing  in  the  world  who  could 
report  the  answers  that  were  gi? en.  I  should 
not  object  to  it,  if  that  ffenthteum  could  himself 
understand  the  answers  that  were  given. 

Mr.  Just.  Gould,  1  think  it  is  very  clearly 
tMifficient  evidence. 

Mr.  Peckhom.  The  interpreter  was  appoint- 
ed by  the  goyemor,  or  by  bis  order,  tborefore 
we  caiuottell  whe^er  tliat  interpreter  gave 
the  fair  and  true  constructions  of  the  conver- 
sation which  pasted  between  Mr.  Fabrigas  and 
Mr.  Wright;  but  from  the  person  appuiating 
him,  we  have  reason  to  apprehend  ihe  contrary. 

CaurL  First,  it  is  very  dear,  from  what  Mr. 
Wright  says,  and  I  sup|iose  nobody  will  doubt 
from  the  subsequent  action,  but  that  this  in- 
terpreter very  fairly  and  rightly  interpreted, 
that  this  roan  desired  to  have  a  quarter  of  an 
hoar  to  consider  of  it :  that  is  clear.  He  has 
two  hours  given  him.  He  comes  back  again, 
and  then  the  same  interpreter  officiates.  TiMact 
wrovea  that  lie  had  ezpUuned  the  first  very  clear- 
ly, because  he  went  away  in  consequence  of  it. 

Wright,  The  assesseur  criminal  talks  as  good 
English  as  aay  gentleman  in  court,  and  he, 
whenever  there  was  the  least  mistake  or.con- 
liiBion  of  sound  or  words,  set  it  right  instant- 
ly. He  returned  again  and  said  he  meant  a 
civil  action. 

How  long  time  do  you  think  he  was  absent  f 
•—Within  two  hours,  probably  an  hour,  Ihe 
assesseurs  both  of  them  walked  out  and  came 
in  agfain.  The  commissioners  not  finding  Mr. 
Fabrigas  would  attend  them,  were  desired  by 
Ihe  general  to  send  him  an  answer  in  writing  tu 
■ix  questions. 

W  hen  was  this? — Subsequent  to  his  saying 
1m  would  proceed  by  civil  action. 

I  suppose  then  that  meeting  broke  up? — 
Yes.  The  governor  consented  that  he  might 
have  a  civil  action  agamst  hioi.  1  repotted 
il  to  the  governor. 

Did  you  tell  him  of  that  ?— 1  neter  saw  him 
afWrwards,  but  the  judges  present  heard  him 
any  he  meant  a  civil  action.  They  told  him 
they  would  admit  it. 

m.Feckkam.  Did  you  bear  that?— J.  Yes, 
I  did.  1  was  to  signify  to  him  that  Ihe  governor 
mted  lo  his  having  a  civil  action,  if  he 
■eit. 

And  was  il  signified  to  him  ? — Yes,  it  was. 

You  say  he  did  not  proceed  by  a  civil  action, 
fed  therefore  six  questions  were  proposed  lo 
Mm  r — ^The  assesseur  civil  canse  to  the  go- 
^^^^^9  and  informed  him  this  mau  did  not  pro- 
eivil  aotiou :  then  Ihe  governor  sent 
»Mlahira. 
iMf  i^cr  wan  it  thai  they  were  sent 
'~^I  oaMOt  ifceUeat. 

It^L Htti  digr r— N» ;  it  Blithe 


three  or  four  days.  The  ^neral  sent  for  his 
own  information  six  questions,  relative  to  Ihe 
conduct  complained  of,  of  the  mustastapb, 
for  the  opinion  of  the  chief  justice  civil,  whe- 
ther the  mustastapb  had  or  not  exceeded  his 
commission.  The  questions  are  in  court,  and 
the  answers. 

Is  there  any  date  to  these  six  questions  ? — 
The  mustastapb  of  St.  Phillip's  hearing  this 
great  confusion,  in  which  he  was  the  great 
person  complained  of,  spontaneously  sent  np 
an  attestation,  or  rather  a  desire,  of  many  of 
the  inbabitaolB  of  thearraval  of  St.  Phillip's,  to 
request  the  continuance  of  the  old  regulations, 
and  that  the  alterations  proposed  by  Mr.  Fabri- 
gas might  not  be  made.  That  was  signed  hj 
a  great  number  of  them,  and  was  as  mnch 
the  object  of  conversalioo  there,  as  any  thing 
ever  was. 

Was  any  order  made  upon  that,  or  what  was 
done  ?— On  Sunday  the  8tb  of  September,  Ihe 
governor  having  first  aiiked  Dr.  Oliver's  leaver 
a  very  considerable  merchant  in  the  town,  a 
doctor  of  laws,  and  the  chief  justice  civil,  he 
gave  them  a  commission  to  go  the  next  morn- 
ing, the  Sunday,  to  the  arraval  of  St.  Phillip's, 
to  a  country-house  the  governor  has  Ihere^ 
that  is  called  Stanhope's  Tower,  telling  them  he 
would  give  directions  to  all  the  people  thatdeaK 
in  wine,  that  they  should  come  before  them  se- 
parately to  be  examined,  and  give  their  oni- 
nions,  and  whether  they  chose  the  new  resolu- 
tions, or  to  adhere  to  the  old  rule. 

What  do  you  mean  by  asking  Dr.  Oliver's 
permission? — He  was  no  officer.  For  them 
to  say  whether  they  chose  the  new  institution 
of  general  Johnston,  or  whether  they  chose  ib# 
general  sale  of  wine  as  every  body  pleased.  A 
great  many  of  them  did  appear  the  next  room- 
ing ;  I  suppose  all :  1  understood  at  least  all  that 
clK»se  to  come. 

Whst  was  done  ?— They  re|iorted  to  the  go^ 
vernor,  that  93  were  for  the  then  practicn^ 
(that  is,  general  Johnston's  institutions)  41 
were  for  the  old  regulations,  sod  6  appeared 
to  be  indifferent,  and  4  wanted  some  alterations 
of  their  own. 

Which  were  the  old  ones?— They  never 
were  in  practice  in  the  arraval  of  St.  Phillip*a  ; 
but,  upon  all  the  enquir}-,  they  could  find  Ihat 
tlie  king's  regulation  subsisted  about  six 
months,  and  made  great  confusion,  but  that 
Ihe  regulation  of  1752  never  obtained  at  all  is 
the  arraval  of  St.  Phillip's. 

When  was  this  reported,  and  dated  P— 
The  8th  of  September ;  tbat  was  on  a  Sundaj. 

What  followed?  Was  this  reported  to  the 
governor  f — Yes ;  but  the  governor  waa  wdl 
mfbrmed  of  what  had  passed,  on  the  Sunday, 
Mr.  Fabrigas  came  on  the  Monday  rooming 
with  a  new  memorial,  complaioing'tliat  it  was 
Sunday;  and  he  protested  against  what  waa 
done,  and  Ihat  Dr.  Oliver,  and  the  chief 
justice  civil,  had  used  threats  and  menacen  l» 
thnpeoplt. 

Then  the  next  memorial  I  have  in  my  hand 
te  Dr.  Blvhidal,  and  Dr.  OKm^  r— Tb  g^ 


M5J 


I^brigoi  V.  MoHyn. 

was  to  cxecediogly  cautioat  in  erevy 
lliior»  whether  of  consequence  or  not,  upon  this 
BOMeoMca]  meoiorial,  that  be  submilled  every 
Inaftinn  to  the  people  of  the  island.  He  sent 
this  report  to  Dr.  Markadal  and  to  Dr.  Oliver, 
fbr  them  to  answer.  They  answered  it  on 
tklOth. 

What  ibUowed  the  next  day  after  that?— 
IiMl  it  was  the  same  day  Fabrigas  came  for 
as  soswer,  the  lOtb,  which  was  Tuesday.  He 
CHW  Ui  me  to  desire  an  answer  to  his  memo- 
lisl  about  the  Sunday  aflair.  I  was  not  at 
haiae.  He  em|uired  then  for  the  grovemor's 
ai4*de-camp,  and  gave  him  the  memorial. 

Hare  is  another  of  the  10th  of  September,  of 
Dr.  Piaiicisco  Segui,  and  Dr.  Markadal's. — 
FiaaeisoD  Scgui  is  the  advocate. 

That  was  an  opinion  of  their's,  as  the  law- 
j»s  ofthe  island  ? — I  fancy  that  accompanied 
tha  answer  to  the  articles ;  I  cannot  be  positive 
tadslci.  Retnminff  home,  1  met  Mr.  Antonio 
Fahrufas  immediately  after  he  had  l>een  with 
the  governor's  aid-de-camp  ;  I  think  the  10th. 
1  ralbcr  avoiiled  having  any  thing  to  say  to 
him:  I  bad  had  so  much,  I  was  quite  satisfied. 
Bs  ramr  to  nse.  I  called  Segui,  a  priest,  and 
gst  John  Vedall,  who  served  for  an  interpreter, 

~  who  happened  to  be  in  the  street,  almost 
the  governor's  wall.  I  desired  Mr.  Pa- 
in the  most  civil  manner  I  couki,  hav- 
MOaae  no  fifty  times  before,  to  say  what  he 
«iihed  or  wanted.  If  he  would  only  point  out 
iihat  be  wtabed,  it  ahould  be  done :  I  would 
viotake  to  answer,  the  governor  meant  to  do 
iij  thin^  that  he  wanted  ;  but  that  he  had 
in  such  a  manner  hitherhi,  that  nobody 
how  to  please  him.  Mr.  Vedall,  who 
natter,  as  every  body  in  the  island 
with  me  in  desiring  him  to  go  home 
his  family  affairs.  All  his  answer  to 
■e  was,  ooflsplaining  of  the  enquiry  being  on  a 
fiasdrf .  I  told  him  that  it  could  not  be  altered. 
JidM  vedall  joined  with  me  in  desiring  him  to 
gs  heoae,  and  not  bring  mischief  upon  himself. 
Ma  Vedall  lold  me,  ne  said  he  would  come 
the  next  day  with  one  hundred  and  fifty 
1  think  it  was  under  bis  interpreta- 
thengh  I  had  the  priest  there  some  part 
afthetiaaa. 

Q.  Jrvm  <Ad  Jury.  Was  it  armed  men.^— 
i.  Bio,  DO. 

What  did  he  say  ?-- -He  would  come  with 
mt  hoodred  and  fifty  men  to  back  the  petition, 
w  whatever  the  word  was,  with  a  petition  and 
•ae  hondred  and  fif\y  men,  or  with  a  petition 
kaeked  hy  one  hundred  and  fifty  men. 

Q.  yVoei  the  Jury,  What  do  yon  apprehend 
he  aaeant  by  that  expression  ? — A,  Upon  my 
aavd  I  catehed  at  the  expression,  and  desired 
John  Vedall  to  desire  him  to  desist  from  such 
aa  idea ;  which  John  Vedall  did,  and  treated  it 
as  Isaghiog :  but  if  I  understood  any  thing  by 
ii«  it  waa  not  to  como  with  guas,  for  they  had 
aa  such  thing,  but  to  come  as  a  mob. 

Q.  from  the  Jury.  Did  .he speak  Spanish  or 
Eaghsh  at  the  time?— J.  Miaorquin. 

What  was  tht  •Char  iotarpretar's  nama?— 


A.  D.  1775.  [188 

Segni,  a  priest,  one  of  the  Spanish  priests :  bw 
was  there  the  first  part  of  the  time,  and  Jobs 
Vedall  the  hitter  part. 

Court,  And  then  in  consequence  of  that,  yon 
thought  he  meant  a  mob  ? — A.  Yes ;  or  I  should 
not  have  got  John  Vedall  to  enter  into  a  k>ng 
conversation  to  desire  him  to  desist 

Q.  What  did  he  say  upon  that?— il.  H« 
went  on,  J  believe,  repeating  the  same  again. 
1  believe  the  conversation  was  closed  upon  that. 

Q.  from  the  Jury,  Has  Allimuado,  by  virtua- 
of  his  office  of  mustastaph,  any  particular  li- 
mited quantity  of  wine  to  sell  P 

Serjeant  Dairy.  When  the  papers  are  read, 
that  will  be  particularly  spoken  to. 

Q.  You  informed  the  governor  of  what  wav 
said  about  150  men?-»il.  Yes. 

Whatpaased  after  that?— I  think  on  Wed»> 
nesday,  the  governor  sent  his  compliments  t^ 
most  ofthe  officers  of  tlie  corpa^  desiring  thi^ 
would  come  to  him  the  next  morning,  to  ae*^ 
the  honour  that  was  to  be  done  to  him. 

Did  they  meet  there?— There  were  most  of 
them  there.  Every  one,  1  believe,  expected 
a  full  meeting  of  the  inhabitanta  of  St.  PhiU 
lip's. 

What  meeting  was  that  that  waa  expected  T 
--Those  people  Fabrigaa  had  spoke  of.  They 
waited  aome  time,  and  at  last  four  people  came, 
(I  think  all  four  were  shoe- makers)  and  they 
brought  a  memorial.  I  believe  a  gentleman  ia 
in  court  that  received  it  from  their  hands.  He 
took  the  memorial  of  them,  read  it,  and  I  thinle 
colonel  Mackellar,  afler  reading  it,  told  them 
that  they  were  to  go  about  their  business,  to 
go  home  peaceably,  and  liebave  themselves  aa 
good  subjects  to  his  majesty  ought  to  do.  I 
think  there  waa  a  conversation  preceding,  to 
shew  they  did  not  know  the  contents  of  that 
memorial  they  were  delivering,  which  I  be- 
lieve will,  by-and-by,  come  out.  The  general 
asked  the  opinion  of  the  general  officers,  as 
well  as  I  recollect,  whether  they  all  knew  that 
this  waa  founded  by  Fabrigas's  proceeding? 
and  the  next  day  he  asked  them  wha:t  they  un- 
derstood by  it?  They  said  they  understood  that 
the  man  was  to  be  ranished  the  islamii 

You  were  not  there  when  they  ^pire  their 
opinions,  I  believe  ?•*-!  cannot  tell. 

And  so,  in  consequence  of  it,  he  was  ba- 
nished the  island  ?-^The  general  ordcsred  him, 
in  consequence  of  that,  to  be  taken  up  that 
night.  He  could  not  be  found.  The  general- 
sent  to  the  chief  justice  civil,  and  tlie  chief 
justice  criminal,  and  the  advocate  fiscal,  to 
Icnow  what  he  should  do  in  that  case ;  tliat  he 
thought  him  not  safe  to  be  left  at  larg^  in  tha^ 
island.    They  told  him— - 

Q.  from  mt,  Serjeant  Glynn,  Were  ycai  pre-* 
sent,  or  do  you  speak  from  information  ?•— il.  I 
am  speaking  of  what  they  told  me:  il  waa' 
sent  by  the  governor  to  ask  their  opinion.  This 
is  their  answer. 

Q.  What  were  you  to  ask  of  themf— i(.  Tha 
governor's  power  upon  this  oocasion*     l?lirf' 
said,  the  govemor'a  power  extended  over  th^* 
man,  and  ha  might  do*  with  him  whal*lM« 


127] 


14  GEORGE  IIL 


AMcmJot  FaUe  Impruonment-^ 


[128. 


pleased ;  and  if  he  chose  to  banish  him,  thej 
would  answer  for  it  with  their  ears. 

These  f^tlemen  are  themselves  Minor- 
quins?— Yes;  and  hoth  talk  very  good  Eng- 
lish. 

Cowt.  This  answer  you  carried  back  tothp  ge- 
neral f'—A.  Yes ;  and  they  told  it  him  viva  voce. 
The  chief  justice  ciril,  upon  my  having  many 
doubts  about  it  myself,  and  saying  that  it  was 
not  quite  the  idea  of  Englishmen,  and  that  we 
had  not  any  such  law  in  England,  said  it  over 
and  over  again.  He  gave  me  a  piece  of  paper 
with  his  own  hand,  which  he  called  a  quota- 
tion from  the  law  of  that  land,  a  royal  order  in 
the  year  1500  and  something  else ;  a  positive 
order  from  the  then  kin^  of  Spain,  wherein  the 
king  says,  that  the  opinion  uf  the  assesseur 
criminal  is  consultative  only  ;  that  the  governor 
may  be  guided  or  not  by  it,  as  he  pleased  ;  but 
not  so  in  civil  cases.  Although  the  governor 
tt  absolute  in  regard  to  the  politics  and  oecono- 
tnical  government  of  the  island,  it  is  not  im- 
proper, but  very  prudent  to  take  the  advice  of 
the  assesseur  criminal,  as  has  been  recom- 
mended by  the  kin?  of  Spain  to  the  governor ; 
although  it  must  be  observed,  that  in  these 
cases  uie  assesseur  only  git^es  his  advice,  and 
consequently  it  is  in  the  governor  whether  he 
will  follow  it  or  not,  and  is  not  decisive,  as  in 
civil  cases.  This  man  being  a  Minorquin,  the 
governor  wanted  to  know  bow  he  ahould  ap- 
prehend him,  no  officer  of  his  knowing  him. 
The  assesseur  criminal  said,  that  the  officer 
that  attended-  him  as  tipstaff  was  an  old  fellow. 
Says  the  other,  **  You  shall  have.mine,  who  ia 
A  young  able  man :"  and  he  was  apprehended 
by  the  tipstaff  who  walks  before  the  assesMur 
civil  every  day  of  his  life  when  he  goes  in  or 
out  of  court. 

How  lon^  was  he  kept  in  prison?-— 1  do  not 
know ;  the  books  will  shew  it. 

Was  he  put  in  the  common  and  usual  prison  ? 
-—There  is  no  other  prison  in  the  arraval  of  St. 
Phillip's,  but  where  ne  was  put,  I  believe. 

Why  do  they  call  it  N""  1  ?— I  do  not  know. 

Court*  It  has  been  particularly  described  to 
me  and  to  the  jury  as  the  prison  where  capital 
offenders  are  confined,  and  is  called  N^  1 :  why 
is  it  called  N**  1,  if  there  is  not  some  other  pri- 
son ? — A,  There  are  gentlemen  better  informed 
of  the  castle  of  St.  Phillip's  than  T  am.  I  be- 
Here  there  is  no  other  prison.  That  may  be 
M^  1  room  in  the  prison. 

Cross-examined  by  Seij.  Glifnn. 

I  think  you  told  us  your  residence  in  Mi- 
norca was  about  a  year  and  a  half:  who  was 
ffovernor  during  the  time  of  your  residence  ?— 
Upon  our  arrival  there,  the  lieutenant-governor 
commanded ;  and  upon  our  arrival  the  com- 
mand devolved  upon  general  Mostyn. 

Then  the  command  immediately  devolved 
upon  him  ? — Within  two  days,  or  so. 

And  the  other  two  days  Mr.  Johnston,  as  his 
liealBpant,  commanded  ? — 1  believe  the  general 
cune  there  on  Monday,  and  took  the  command 
Ml  Thiuiday.    Beporti  iind«  general  John« 


aton*s  siirnsture  that  the  governor  was  arrived  - 
made  it  necessary. 

Tlien  your  experience  of  the  laws  of  Mi- 
norca has  been  cullectHl  in  that  residence?— 
That  is  all  1  know  uf  them  in  the  world. 

Which  lias  been  during  the  government  of 
governor  Mostyn  or  his  lieutenant.  Now  you 
told  us,  that  the  proclamation  of  the  governor, 
with  regard  to  tbe  criminal  court,  was  the' 
same  as  a  law  ;  and  you  distioifuish  the  court 
of  property,  which  regards  meum  and  tuuMf ' 
from  it? — Quite. 

Do  you  mean  that,  without  any  limitation 
whatsoever?  Suppose  the  governor  intended  to 
inflict  a  capital  punishment  upon  any  offender, 
most  that  law  be  obeyed  by  the  judges  ?— I 
should  imagine  it  would,  it  is  only  my  ima- 
gination, observe. 

I  think  you  were  so  kind  before  as  to  tiill  ns, 
that  thougn  that  proclamation  came  out  but  the 
morning  before,  it  would  be  equally  obligatory 
upon  the  courts  of  justice?— I  understand  ao. 

Now  this  roustastaph,  Allimnndo,  sells  wine, 
does  be  not? — He  makes  wine  of  his  own 
vineyards,  and  buvs  grapes  of  other  people  t» 
make  wine,  and  aells  it  in  the  arraval.  He  doeg 
not  sell  it  retaiL 

That  was  a  regulatM>n  of  goremor  John* 
ston's?— I  believe  so. 

I  would  ask  you,  whether  AUimundo  bad 
not  a  lot  himself  to  sell  his  wine,  and  exdode 
every  other  person  ? — I  think,  aa  the  papera 
are  upon  the  table,  they  will  sp^  for  them* 
selves.  I  think  Allimnndo  for  bis  own  vindi- 
cation urges 

But  I  aak  you,  of  yonr  own  knowledge, 
whether  the  lot  did  not  fall  upon  him  .'—I  be* 
lieve  he  did  not  draw  any  lot  at  all ;  it  is  not 
the  cuatom  for  the  mustastaph  to  draw  lots. 

You  think  he  did  not  draw  lots  ?— No. 

You  did  not  understand  the  Minorquin  Inn* 
gnage?— No. 

It  is  a  mixture  of  Italian  and  Spanish  ?— Yes, 
I  believe  so,  and  a  kind  of  bad  Spanish. 

You  have  told  us  of  the  two  interpreters :  I 
think  you  don't  recollect  exactly  the  worda  the 
laat  interpreter  said?  You  thinly  father  Segni 
was  gone  before  Fabrigas  said,  «« I  will  oome 
with  a  petition  with  150  men,  or  badced  bj 
150  men  ?*' — I  cannot  be  sure ;  I  think  it  waa 
Vedall ;  and  the  more  so,  from  his  joining  with 
me  in  endeavouring  to  persuade  bun  from  hie 
intention. 

1  think  you  communicated  this  matter  to  th« 
governor  ? — Yes. 

Did  you  carry  Vedall  with  you  ? — No. 

Did  you  make  any  enquiry  afWr  the  150 
people?— No. 

You  yourself  were  the  person  that  reported 
the  conversation  to  theffovernor? — Yea. 

What  time  did  you  write  this  paper?— 1 
fancy  the  memorandums  of  that  paper  wera 
wrote,  I  ahonki  think,  1  could  not  swear  to  it 
ao  particulariy,  I  should  think,  within  an  hour 
of  every  one  of  these  transactions  happening* 

Then  I  take  it  for  grantml,  that  this  ia  a 
Mtkfol  espy  of  a  fiuthfiu  coUcGlioD,  Mceniinc 


W] 


Fabrigas  v.  Mostyn. 


A.  D.  177S. 


[ISO 


li  your  iMDMiry,  within  an  hoar  aod  half  after 
neh  tnwMction  f — It  waa  not  pat  dowQ  for 
theMblae  eye,  but  to  refresh  my  own  mind. 

Tiio  yoa  did  nol  put  down  any  thin^f  which 
^4id  not  believe  to  be  true?— No,  I  tfaoold 
Mt4cam  of  inch  a  tbing^. 

Jiaw  long  after  did  yoo  communicate  to  the 
pMOi  what  Fabrif^  had  aaid? — I  never 
wi laager  between  communicating  to  Fabrigas 
wkat  the  nfovernor  said,  aod  to  the  governor 
vbat  Fabrigas  aaid,  than  going  from  this  wall 
li  that ;  uokaa  the  governor  was  not  arrived 
kibe  morning,  and  I  waited  bis  return. 

Tkn  you  coold  make  no  mistake  of  what 
Fabrigas  bad  said.  You  communicated  to  the 
pi u sot  what  yon  put  down :  vou  are  sure 
jm  are  wider  no  mistake  on  tbalheadf— I 
bsw  1  iniKht  mistake. 

Bat  I  ilo  not  ask  you  about  any  mis-spelling 
m  ■Msdat^s,  but  the  effect  of  the  conversation  ? 
•-Ufoo  my  soul,  I  believe  so. 

Snj.  Giynn.  Then,  Sir,  I  will  read  it.— 
"  The  same  day  Mr.  Fabrigas  came  for  an  an- 
iwv  to  bis  petition,  and  told  the  governor's 
■Mtlsiy  bo  aboold  come  the  nest  day  with  a 
palilioa  of  people  concerned  m  grapes  and 
«Ma.  whicb  they  wiU  sign  and  come  with 
AssbmIvco,  to  the  number  of  150." 

Hog.  Gfyun.  I  desire  it  may  be  read  ;  but  I 
Wii*t  aafc  Mr.  Wright  any  more  qdestions.— 
(kia  mad  bv  the  Ameiate.) 

Mr.  Petikmm.    Pray  read  the  nest  pava* 


<«On  Wednesday  the  11th  the 
r,  having  the  field  offioera  in  and  near 
with  him,  received  a  memorial  from 
^gmtd'  by  persons  of  St 

^'s,  deMriugthe  old  praetice  might  be 
i:   lo  which  he  answered,  that  tM  four 
ikould  return  home,  and  behave  them- 
es lenod  and  peaosable  subjects  to  his 
ttupsly  ought  to  do." 

Mr.  Lee.  Your  lordship  will  give  me  leave 
liash  npoB  this  paragraph  a  question  of  Mr. 
Wi^gbt.  You  say  tl^re  were  four  men  came 
oib  a  Biemorial  signed  by  persons  of 

ftillip'a,  desiring  the  oki  praetice  might  be 
]:    did  you  see  that  memorial  ? — A.  1 


OsB  yoa  take  upon  yoo  to  affirm  by  what 
~  er  it  was  signed?—!  shall  apeak  merely 
■aaaory,  for  ihey  were  all  scratches :  1 
iiaot  believe  there  were  ten  names  legible  to  it. 

What  number  of  signatures  were  there  upon 
te  poper  ?— I  have  already  said  1  really  and 
ipoo  my  word  do  not  know. 

Were  there  nearer  150  or  100  ? — It  is  mere- 
ly a  matter  of  memory  ;  there  were  from  41 
li  4r,  I  believe. 

Now  can  you  take  upon  you  to  affirm,  that 
Ikffie  were  not  more  peopje  signed  this  me- 
■Bfial  than  had  signed  the  memorial  for  the 
aev  ioslitoiion  P 

Csarl.  1  understand  it  is  in  the  report. 
Then  h  a  report  of  the  assesseur  civil  and 
Or.  Otivcr,  that  99  were  for  governor  John- 
Ma'a  institolisD,  and  41  for  the  okl  reguht- 

%ouxx. 


tuHi ;  6  appeared  to  be  indifferent,  and  4  want- 
ed some  alterations  of  their  own. 

Q>  There  were  90  odd  for  the  new  institU'* 
tion?— il.  My  memorandum  says  so. 

Can  you  tell  me  whether  there  were  or  wera 
not  imon  this  memorial  which  was  brought  by 
the  four  men,  the  signatures  or  requests  of 
more  or  less  than  that  number  for  the  oM  in* 
stitution?— I  have  already  said  ten  times,  that 
I  cannot  take  upon  me  to  ascertain  ihe  nnmbof 
of  signatures  upon  this  last  memorial ;  but  I 
do  know  Allimundo  proved  many  of  them  to 
be  false. 

You  know  that  is  not  an  answer  to  my  ques* 
tion.  I  did  not  ask  yau  what  were  the  number 
of  men  that  signed  this  rDemorial :  I  don't  meaa 
you  abould  answer  with  that  precision,  whether 
46,  50,  or  1 JM) :  but  my  question  is,  whether 
you  can  take  upon  you  to  affirm  atthia  distanoa 
of  time,  that  the  memorial  whiah  waa  brought 
by  four  men  was  signed  b;^  more  or  less  thaa 
90  ? — I  can  aay  no  more :  if  I  knew,  I  would 
tell  you.  I  looked  at  the  memorial,  it  was  foU 
of  crosses;  and  what  makes  me  think  it  waa 
between  forty  and  fifty  was,  beoaiise  I  connt* 
ed  it. 

Then  you  did  count  itP— -I  did  begin  im 
count  it. 

Did  you  proceed  to  count  them  through  ?•*-■ 
What  signifies  answering  that  ? 

Because  I  expect  an  answer.  What  signi^ 
fies  counting  numbers,  and  not  going  through 
it?— I  wish  your  head  was  capaUe  of  retaining 
every  little  circumstance  of  no  conaequencew 

Court.  The  gentleman  meana,  whether  yoa 
have  now  snob  a  certain  recollection  of  the 
number  of  signatures  upon  that  paper  aa  to  say, 
whether  there  were  more  or  less  than  90  P-^ 
A.  I  don't  recollect  any  thing  but  one ;  that  is^ 
that  I  began  counting;  any  other  circum* 
stances  that  shall  lead  me  to  the  number,  who* 
ther  I  left  off  at  40  or  what. 

We  understand  that  a  considerable  majoritj 
signed  this  very  memorial — we  want  to  Know 
that  fact? — Every  attention  was  employed, 
every  argument  UMd,  and  every  posnible  meana 
was  taken,  for  finding  out  the  true  sense  of  tha 
inhabitants;  and  amidst  the  various  methtNia 
taken,  there  did  not  appear,  wlien  enquired 
into  fairly  and  honestly,  to  be  one  in  ten  of  all 
the  names  that  were  presented  to  the  general 
in  support  of  Fabrigas's  complaint.  Mr.  Alli- 
mundo was  supposed  to  be  a  man  that  would 
produce  the  truth.  The  fort-mi\|or  was  seat  to 
examine  with  him. 

Mr.  Lte.  The  seijeant  will  tell  yon,  that  ia 
no  evidence  at  all.  Let  me  ask  you,  when  this 
particular  paper  was  copied  that  1  have  in  my 
band  ? — A,  As  soon  as  1  was  at  leisure  to  A 
it  myself. 

\V  hen  was  this  particular  paper  copied  ? — I 
have  said  balf*a-dozeu  times,  as  soon  as  I  had 
time  to  put  all  the  bits  of  paper  together;  in« 
stantly. 

Was  this  paper  copied  from  a  memorial  in 
which  this  number  is  stated  blank  as  it  is  here, 
or  have  yoa  that  original  nemorial  by  youT 

K 


131] 


14  GEORGE  m. 


Action/or  Fake  Imprutmment^^ 


[ISS 


In  whose  powession  was  that  memorial  f— Not 
in  mine. 

To  whom  was  it  gi? en  P— I  think  to  colonel 
Mackellar. 

He  was  an  officer  of  the  g^remor's? — Com- 
mander in  chief  o£  the  corps  of  engineers. 

So  he  had  the  possession  of  that  memorial, 
the  contents  of  which  you  have  stated  by  blank 
persons  ? — All  I  can  recollect  of  that  particular 
memorial  that  yoa  ipeak  to  is  this,  that  four 
people  brought  it;  it  is  a  hard  thing  to  be 
pinned  down  to  such  a  thing  as  that.  The 
mustastaph  himself  was  present.  I  think  col. 
Mackellar  was  talking  of  this  memorial:  I 
think  I  had  it  out  of  his  hand,  and  was  going 
to  read  it,  and  connt  it.  I  beliere  he  or  Alli- 
mundo  took  it ;  and  I  beliere  Ailimundo  took  it 
home  to  confute  many  of  the  names,  which  he 
did  afterwards. 

And  that  you  conceif e  to  be  the  reason  whj 
you  did  not  get  through  them,  why  you  did 
not  proceed  to  tell  the  number  ? — I  should  be- 
lieve so,  upon  my  word  and  honour. 

You  do  still  take  upou  you  to  affirm  that 
there  was  nothing  like  the  number  in  this,  that 
there  were  for  the  other  regulation? — I  did  not 
Attempt  to  sa^  such  a  thing. 

Upon  the  inspection  you  then  had,  you  can- 
not take  upon  you  to  affirm  that  f— I  have  told 
ou  all  1  know  of  it:  I  fancy  there  was  much 


you 
Jess 


Serj.  Burland,  You  were  asked  about  the 
lieut.  guf emor  being  general  Mostyn's  lieut. 
governor ;  I  believe  Uie  governor  does  not  ap- 
point his  own  lieut.  governor? — A»  No. 

I  believe  those  regulations  made  by  general 
Johnston  were  some  years  before  general  Mos- 
tyu  was  governor? — ^The  date  willshew  it. 

I  suppose  about  1759  ? — O  no ;  since  that. 

f  meant  1768  ? — I  believe  prior  to  the  exe- 
cotioo  of  the  office  of  mustastaph  by  Mr.  Aili- 
mundo. 

Prior  to  the  time  Mr.  Mostyn  was  made  go- 
vernor ? — ^Yes. 

You  were  asked  a  good  deal  about  that  me- 
morial that  bad  these  crosses  upon  it :  you  said 
Ailimundo  took  it  away  with  him  in  order  to 
confute-  I  know  he  had  it ;  1  don't  know 

whether  he  took  it  away. 

Had  the  governor  any  reason  to  apprehend 
that  those  names  at  the  bottom  of  that  memo- 
rial were  not  put  there  by  the  persons  ?-» Yes, 
he  had  reason  to  believe  it. 

Did  he  enquire  into  it  ? — Yes. 

What  was  the  result  of  his  enquiry  ? — The 
report  made  to  him  was,  that  a  certain  number 
of  their  names  were  absolutely  forged ;  that 
the  hands  of  others  were  obtained  under  a  sup- 
position that  the  memorial  related  to  oil. 

Court,  You  said  just  now,  that  upon  a  strict 
enquiry  there  did  not  appear  above  one  in  ten  ; 
did  you  yourself  make  enquiry  of  what  was  the 
general  sense  of  the  inhabitants?— il.  To  every 
body,  and  with  every  body  that  could  possibly 
give  me  information;  and  from  the  general 
conversatioD  I  had,  it  did  not  appear  to  me  thai 
there  waa^  I  might  say  one  in  twaoly  that  erer 


wished  it ;  and  it  wonid  be  worth  your  lord-' 
ship's  attentkin  to  see  what  these  regulationf 
are. 

Court.  Then  by  the  generars  direction  yon 
made  the  strictest  enquiry  you  possibly  could; 
to  see  what  the  sense  of  the  people  might  be. 
and  did  not  find  above  one  in  ten  that  wished 
for  this  alteration  that Fabrigas  desired? — A.  I^ 
according  to  my  own  opinion,  give  a  great  al- 
lowance when  I  say  that. 

Did  you  inform  the  governor  of  this  ? — ^When 
I  use  the  word  report,  I  don't  mean  an  idl« 
story  picked  up  from  one  or  other,  but  a  mili- 
tary term,  an  answer  to  the  enquiries  made  by 
the  governor. 

Then  the  intelligence  you  conveyed  to  th« 
general  was,  that  the  opinion  of  by  far  th* 
greater  majority  was  against  this  Fabrigaa's 
desire? — All  almost:  I  save  my  oath  by  lay- 
ing almost,  but  there  was  almost  all. 

John  Fleydel  sworn. 
Examined  by  Seij.  Walker. 

Q.  Yoo  were  aid-de-camp  to  general  Mottyq, 
I  believe  ?— il.  Yes. 

Upon  the  9th  of  September  177 1«  give  Ui 
account  of  what  you  know  of  this  afiair  when^ 
Fabrigas  came  to  the  governor's? — He  asked 
me  to  see  the  governor  in  the  morning.  I 
told  him  he  could  not  then  see  the  go- 
vernor, but  I  was  aid-decamp  to  the  go- 
vernor, and  any  ftvour  or  any  thing  he  bad 
for  the  governor  I  was  ready  to  receive. 
Afler  a  litde  hesitation  be  gave  me  a  paper,  a 
memorial :  he  desired  at  the  same  time  I  woidd 
inform  the  governor  that  he  should  come  the 
next  day  for  an  answer;  he  said  he  ahouki 
come  accompanied  by  300  or  S50  of  the  inha^ 
bitantsofStPhiUip's. 

Two  hundred  or  250?— 1  don't  ezactlj  ro- 
member  the  words. 

Was  that  all  the  conrersation  you  had  with 
him? — Yes.  I  immediately  acquainted  the 
governor  with  this  message:  1  read  the  me- 
morial to  the  governor  immediately,  and  in- 
formed the  gotemor  of  what  he  had  said  te 
me.  I  think  it  was  that  day  the  governor  seel 
to  the  field-officers  of  the  garrison  and  to  the 
commanding  officers  of  the  corps,  to  meet  at 
his  house  the  next  day,  in  order  that  they 
might  be  witnesses  of  the  manner  in  which  he 
should  receive  this  Fabrigas  and  the  |ieople  be 
mentioned  to  come  along  with  him.  Onlj 
four  men  came  the  next  day,  and  brought  e 
memorial. 

Were  any  of  the  commanding  officers  there  f 
—Yes  $  I  think  all  the  commanding  offioere 
were  there  when  these  men  came. 

What  were  the  sense  of  the  commanding 
officers? — I  think  the  sense  of  the  commanC 
ing  officers  was,  that,  in  abort,  this  man  should 
be  taken  up. 

Why  would  they  take  him  up  ? — As  a  troa« 
blesome,  seditious,  and  dangerous  person  in  the 
island.  The  governor  mentioned  to  me,  that 
he  had  eonanlted  the  chief  Mioorquin  judges  off 


159) 


Fahrigat  «•  MoHjfn* 


A.  D.  177S. 


[184 


Ike  idiBd.  I  know  he  bad  coDsolted  them, 
wfcieb  eorroborated  the  opinion  of  the  field- 
ifiofln  tbttt  were  there  attending. 

Who  18  this  Mr.  Fabrigas  ? — An  inhabitant 
if  %m  am?al  of  8t.  Phillip's. 

Of  that  district  that  does  not  belong  to  the 
far  where  there  are  jurats  f— Yes,  and  is  close 
Iftht  glacis  of  the  fort 

What,  has  he  there  anj  property  P— Hw 
Hhcr  is  alire ;  he  takes  care  of  his  father's 
fiaeyards,  I  belieTe.    That  is  all  the  property 


That  is,  the  liberty  of  working  in  his  father's 
lismnl  ? — 1  believe  so. 

What  sort  of  a  character  does  he  bear  there? 
—He  is  generally  supposed  to  be  a  seditious, 
IvkdeBt  man ;  that  is  the  general  character 
•f the  nan.  General  Mostyn  is  very  far  from 
bng  a  tyrannical,  overhearing  man.  I  had 
Mre  opportunity  of  knowing  him ;  I  served 
■wnwKately  under  him  the  greatest  part  of  the 
hit  war. 

A  man  of  temper  and  humanity  P— Tes, 
toy  much  so. 

Cross-examined  by  Mr.  Lee* 

0-  Yoo  were  aid-de-camp  to  general  Mos* 
^f— X  Yes. 

Do  3roa  remember  Fabrigas  declaring  that 
Kit  ay  he  would  come  accompanied  with 
fiOscn?— Yes. 

Do  yoa  know  whether  there  had  not  been  a 
itfof^  anaongst  the  inhabitants,  and  upon 
ihdi  aide  there  was  a  majority,  whether  for 
is  new  or  old  regulationsP-^l  cannot  tell. 

What  were  these  S50  men  to  come  for  P — I 
lagined  it  was  to  give  weight  to  the  petition. 

Ut  yoo  eonceif  e  that  the  object  of  Mr.  Fa- 
knswas  to  bring  200  or  250  men  that  were 
if  Mspinion  to  give  weight  to  his  request?— 

fly  learned  friend  tboupfbt  he  meant  to  at- 
tek  the  gmrnsoo  of  St.  Pbinip's.  You  did  not 
iwiibeud  he  meant  to  take  the  garrison  of  St. 
Kffip'e,  that  stood  out  against  the  whole  force 
tf  France  for  a  considerable  time,  and,  by  the 
|m  might  bare  stood  out  a  great  while  longer  ? 
Tie  Aa  not  understand  that  be  was  to  come 
Hike  bead  of  these  armed  peasants P— Not  of 

C0mrt.  You  apprehend  he  was  to  bring  these 
aaaale  lo  shew  there  were  so  many  |)eople  to 
bcK  kia  petition? — A,  No;  I  apprehend  he 
a  nioh  that  would  breed  confusion  in  the 


Whether  you  understood  that  he  meant  to 
ig  tbese  200  people  to  occasion  and  raise  a 
iialt,  or  whether  he  meant  to  bring  so  many 

rple  Co  shew  they  fa? oured  his  petition  P — 
oaany  people  together  in  a  garrison  would 
hned  eoofusion. 

Cmtri.     What  did  you  understand? — A,    I 
imOy  thought  be  meant  to  g^f  e  weight  to  his 


HmI  yen  heard  at  the  time  that  Fabrigas 
ipske  m  bringioj;  200  or  250  of  his  friends — 
M  joo  board  Of  aj»y  dispute,  whether  there 


were  more  of  one  opinion,  or  more  of  the  other ; 
or  had  it  been  asserted  that  the  people  in  ge- 
neral of  the  arraral  of  St.  Phillip's  were  con- 
senting to  the  new  regulations  ? — I  think  the 
people  in  general  wish«l  to  bare  the  old  regu- 
lation contmued ;  I  took  it  in  that  light. 

What  do  vou  mean  by  the  old  custom  ?  the 
custom  Fabrigas  contended  for,  under  the 
order  of  council  in  1752  P — Yes. 

I  dare  say  the  Serjeant  will  not  acknowledge 
that  you  mean  that 

Serj.  Davy.  No  more  he  does. 

Court.  Do  you  mean  by  the  oM  custom, 
that  which  was  aettled  by  governor  Johnston  f 
-—A.  I  do ;  it  was  some  years  before  general 
Mostyn  came  to  the  island. 

Court,  Or  do  you  mean  a  custom  that  was 
before  the  order  of  1752  ? — A.  1  do  not. 

Mr.  Lee,  Then  am  I  to  understand  you,  that 
you  think  the  majority  of  people  were  a^nst 
the  opinion  of  Mr.  Fabrigas  P — A,  That  is  my 
opinion. 

Do  you  recollect  that  having  been  alledged 
to  governor  Mostyn  as  the  general  opinion  P— 
Yes. 

Do  vou  recollect  that  having  been  alledged 
to  Fabrigas,  that  the  popular  opinion  was 
against  him  ? — I  don't  exactly  reeolWot. 

Don't  you  recollect  that  the  very  end  he 
had  in  view,  and  professed  to  have  in  view,  in 
bringing  a  number  of  his  friends  and  a  num- 
ber of  people  concerned  in  vineyards  to  present 
this  memorial,  was  for  the  purpose  of  convinc- 
ing the  general  that  a  majority  of  people  were 
with  him,  and  not  against  himP — I  suppose  he 
must  mean  so. 

Did  not  you  understand  him  so  at  that  time, 
when  he  talked  of  bringing  a  memorial,  and 
coming  accompanied  by  200  or  250  men  ?  Did 
not  you  understand  him  to  mean  that  such  a 
number  of  people  that  were  concerned  in  the 
wine  trade  ana  in  the  produce  of  vineyards 
would  come  and  signify  that  to  be  their  inten- 
tion P— Certainly  he  meant  so. 

Were  you  present  when  the  four  men,  not 
the  200  or  250,  came  with  the  memorial  sigu- 
ed  by  others  P— I  was. 

Was  that  memorial  ever  in  your  hands  P — I 
don't  remember  ever  having  it  in  my  hands.  I 
saw  it  in  colonel  Mackellar's  hand,  the  chief 
engineer,  when  he  questioned  them  about  it ; 
and  these  very  people  seemed  shocked  when 
he  explained  to  them  the  tenor  of  the  memorial. 
It  was  wrote  in  English,  and  they  seemed  not 
to  understand  the  import  of  it. 

Tliey  were  Minorquins?*-- Yes. 

Can  you  tell  me  what  number  of  signatures 
were  in  that  memorial? — 1  cannot  guess  at  it: 
I  should  think  much  about  50  or  60,  but  can- 
not guess. 

You  did  not  count  them  at  all  ? — No. 

Robert  Hudson  swnrn. 
Examined  by  Mr.  Buller. 

You  were,  1  belisvs,  fort- adjutant  at  this 
time?— Yes. 


1S5J 


14  GEORGE  m. 


Action Jbr  Fake  Jmpritonment'— 


[138 


Was  any  applicttioD  made  to  yoa  by  the 
ciril  maKittratet ? — Yea;  the  mustaataph  of 
Sc.  Phillip'v  came  to  me  oo  the  lOib  or  lltb  of 
8epteml)ir,  aad  told  me,  upon  readiaj;  aome 
oniera  of  general  Mogtyn,  ibat  Fabrigaa  aaid 
he  would  come  with  a  mob,  and  aaid  tbey  were 
Bull  and  Yoidy  and  tbey  would  aee  better  days 
to*  morrow. 

Air.  Peckham,  You  need  not  mention  what 
the  mustaataph  told  you  ;  that  is  not  regular. 

Cimn)>eifor  Defendant.  That  ia  the  regular 
metbo<l  there. 

Mr.  Peckham,  It  may  be  regular  there,  but 
it  is  f  ery  irregular  here,  and  cannot  be  admitted 
aa  e?  idence* 

Mr.  Just.  Gould.  I  ahould  be  glad  to  know 
bow  the  go? ernor  can  he  apprised  of  any  dan- 
^r,  unless  it  is  by  ane  or  other  of  his  officers 
wfbrmiiig  him  there  is  likely  to  be  such  and 
auch  a  thing  happen  ?  I  suppose  he  gires  the 
go? ernor  an  account  of  what  he  has  heard,  then 
thegoTeruor  makea  an  enquiry  into  the  matter. 

Mr.  Peckham,  Hearsay  is  no  eridence. 
Besides,  the  mustutaph  ia  an  interested  and  a 
prejudiced  person ;  at  least  he  appeara  ao 
throuifbout  the  different  parte  of  this  cause. 
Now  can  what  he  baa  said  in  Minorca  to  this 
witness  be  admitted  as  evidence  here?  The 
nustaataph  is  liring;  why  don't  they  produce 
him  ?  If  they  had  brought  him  here,  we  should 
have  his  e? idence  on  oath,  and  could  croaa-eza- 
mine  him  to  the  facta. 

Cauri.  We  do  not  take  it  for  granted  that  it 
ia  really  ao ;  only  that  this  gentleman,  bearing 
of  this,  tell«  the  gofernor. 

Mr.  Lee,  It  is  no  OTidence  of  the  fact:  if 
you  mean  it  only  aa  a  report,  we  do  not  object 
to  it. — A.  The  mustaataph  toM  me,  that  upon 
ffif  ing  out  some  orders  to  the  inbabitanta  of  8t. 
Phillip's,  some  orders  relative  to  the  aelling 
wine  in  St.  Phillip's,  he  came  with  a  mob,  and 
aaid,  >«  It  is  nuH  and  void,  and  we  will  see 
better  things  to-morrow."  He  further  said, 
Ibat  if  there  were  not  some  immediate  measures 
taken  with  this  Fabrigas,  he  was  afraid  of  the 
€onsf>quenoe,  the  rising  of  the  people. 

This  was  enough,  f  should  think,  to  give  an 
alarm.  Did  you  acquaint  the  governor  of  it  ?— 
Yes,  1  did. 

What  was  done  after  that  ?  Did  the  gover- 
nor call  you  together?— I  was  not  pnvy  to 
what  the  giif  ernor  did  in  cooaequence  of  this; 
iny  pott  was  two  miles  off. 

Omrl.  Gentlemen  of  the  jury,  then  all  this 
comes  to  nothing ;  be  pruves  no  Vact^- 

8*0  .-^^"vy.  No:  this  is  to  introiioce  the 
Bcxt  e«  idence,  of  the  goTemor  summoning  tlie 
•fficera  together. 

You  knew  this  Fabrigas ;  what  wu  his  be> 
havioiir  iu  the  island  .*— fikiremely  troublesome, 
wmya  repreainted  to  me :  there  never  was  anv 
•Igecliuu  m  governor  Johnaton'a  regulation  tdl 
hy  thia  nan.  Governor  Jobnstoa  did  this,  be- 
Ihe  wint  ttaed  loiaraaoar,  by  every  body 
•■•wadtoacU  wiMataiinM:  theydi^ 


in  order  that  no  more  might  be  opened  at  % 
time  than  could  be  aold  before  it  waa  sour. 

Cotir^  I  chose  to  bear  the  reaaon  and  ftnui- 
dation  of  the  reguktion. 

Q.  What  is  the  consequence  of  that  aoaouf 
the  soldiers  P—il.  Diaovdera  of  diifer«nt  kintK 
fluxes  and  tbe  like. 

Court.  There  bdng  no  celbura,  I  anppon 
they  could  only  buy  from  hand  to  mouth.-*il. 
In  general  they  are  open  aheda;  tbey  nra 
hardly  better  than  abeda. 

a  Did  that  produce  any  disagreemenii 
among  the  aellera  tbemaelvea,  that  tl^  under* 
aold  ^ich  other  ? — A.  Some  poor  people,  that 
bad  but  little  wine,  were  almoat  atarved:  the 
aeveral  yeara  after  governor  Johnaloo  made  this 
regulation,  there  never  was  known  to  be  neaali 
aour. 

Court.  I  waa  rather  apprehenaive  that  thin 
might  enhance  the  price. — A.  Tbe  price  was 
never  raiaed  upon  that  account. 

Mr.  BuUer.  There  waa  an  afforationjpric*. 

Mr.  Lee.  Yea ;  but  thia  waa  a  libarty  of 
aellin^  b«low  it— il.  The  town  of  fit.  Philiip*a 
was  divided  into  four  diviaiona,  and  four  peopin 
uacd  to  sell  at  a  time. 

Colonel  Patrick  Mackellar  swon. 
Examined  by  Seijeant  Daigf. 


Were  you  at  the  garriaon  in 
1771?— Yes. 

Did  ywi  know  Mr.  Fabrigaa  belbre  the  tune 
of  his  being  apprehended  P—-1  have  known  him 
by  character  a  great  white ;  they  called  him 
RedToney. 

Yoa  happened  to  aay  yon  knew  him  by  chn* 
racter ;  what  wu  the  cnaracler  be  bore  P— A 
very  bad  one  ever  since  I  have  been  in  lh« 
iatand,  and  for  aome  time  before. 

Of  what  sort? — He  was  sedituNis,  troohin- 
aome;  a  drinking,  gambling  fellow;  aat  upoC 
nigbta  with  low-life  people ;  and  lie  kapl 
women. 

In  short,  he  is  a  man  of  an  ordinary  chnrao- 
ter  ? — Yes. 

But  the  character  that  I  wanted  <^iiAy  In 
be  informed  about  waa,  concerning  hia  obedi- 
ence to  government,  whether  he  is  a  turbulent 
man  ? — I  hai-e  had  many  coniplainta  of  him 
from  two  musta^taphs,  when  I  have  been  com- 
manding officer  of  tlie  garrison. 

How  long  have  you  been  there? — I  waa  onn 
of  tbe  first  that  went  there  when  the  lalaad 
was  restored  after  the  la«t  war,  and  had  beaa 
there  a  good  many  \ears  before.  I  went  Arat 
in  1736,  and  left  it  in  1750.  I  ment  in  May 
1763,  and  remained  then:  till  May  laat. 

Tlien  you  must  be  prHi>  well  acquaintoi 
with  tbe  laws,  and  gotemmeot,  and  constiiutimi 
nf  ibis  country  ?— I  have  a  good  dealof  knofP« 
ledge  of  it,  as  much  as  a  uiiliury  asan  eaa 
have :  we  cannot  aiudy  these  things  aa  lawy  en 
do. 

Pray  is  there  not  a  district  tbey  call  by  Uw 
name  of  the  arraval  of  Sl  PhilMp^i  f— Yea. 

Mowfiff  bthatr^tii  mdmd  bj     ~ 


yahrigas  v.  Mottyn. 

4BB  ridi,  and  mrToimdcd  bj  water  oa 

tbe  fort  7— WitliiD  a  musket- 

!t  withio  tbislbeUcalleil  Ihear- 

Hftal  ilo  YOD  meBD  by  (tie  wati,  rnyalty?— 
hi  wImtc  Hie  ^vernor  bas  ■  greater  power 
tmrnuj  where  Vise;  nliere  lleJud|resot'lbe 
tteloMHWIinterpow  their  aulhurily  or  power, 
kHby  lii«  ifCrmiwioD  ;  ami  people  ol*ihe  arra- 
•ri  h«*B  pcrticular  pn>il^ge«  da  that  account. 
IWMfei  nnoot  conTflie  any  person  W  ap- 

CWVK  (bem,  but  by  ihe  j,'nTernur'B  appro- 
B,  wUbuttliearraval, 
li «  MM  tw  in  the  other  parts  of  the  iiland  7 

Yon  bare,  I  beliete,  in  the  other  parts  of  the 
Und,  officer*  called  jurati  ?— Ye«. 

I>  Ibere  aoy  aiwh  in  the  arravat  7— Ko ;  tbe 
■Mluupli  iithe  ddIj  ma^iatrate  there. 

IVn  tliere  tt  an  officer  irithio  thia  royally, 
vilbin  tbia  ftrraval,  calieil  a  iDugiuiuph,  who 
k  tbe  ovly  nauHlraie  there?— Yea. 

In  KAhit  parta  nl'  the  islaad  there  ere  other 
^QsiiBtea  of  iliffercnl  namea,  jurala  aod  so 
fcnb?— Y*i. 

WbMD  ia  tbe  miiataslnph  oflhe  arraval  ofSt. 
niilIifi'*appoiote<lby?--Thef;aTerDar;  orcom- 
MaaritT  it)  chief,  when  there  is  no  goTeruor. 

DaM  tir  dnplaeehim  at  his  pleasure? — Yes, 

Wbu  la  lite  office  of  muilBBlaph  ? — He  lakes 
WB  of  liie  Heights  and  meaeurea  of  loarheta ; 
M»  ■•■  ai-counl  of  all  (be  wine  that  is  made, 
—Alt  ilierNpMidilureot'lhe  wiae-,  andielllea 
laj  IHib  itianutea  among  the  inhabitants,  in 
*Mib«y  oil  the  flrst  instance, 

WW,  ia  that  wirii  rrgaril  to  tbe  alforalion, 
*W»mtt  o(  the  prii-e  of  tbe  wine  N--Thal  is 
4Mljr  idr  tnaKistrates  at  Mahou.  The  ma- 
fiHMsa  'if  Mahoo,  as  they  ilo  every  where 
•b,  «i  a  price  upon  tbe  "ioe,  wtiich  they  call 
■  iCvalioii  or  marbet  price,  aixl  the  artaral  nf 
k  Pt.Uh|t*a  t«  always  ruleil  hy  rhe  a(fi>ration  at 
Mil—  ;  the  niiipalrates  at  Halion  do  nnt  put 
ie  iipoo  ii,  but  it  is  always  adopted. 

'■•Toffifvrihat  in  point  111  fiirmsellte* 
n  |irice(--There  are  different  prices 

'Jhrrpi  iwttnitKM,  biil   ibal  in  t£'i>erned  tiy 

-  imcFUuiialiseilaiMahnn.     Mu boo  is  the 

-iff^ikMHctlotit,  Phlllifi's. 

tk  lio  ■■  the  prfsMi  ibsl  in  point  of  form  does 
iiofK  ttr_Tbp  niuMaaUph  is  the  nffiier 

'1  dora,  aoJbcnuly  wgnifipawhgilthepriteis. 

!t*  ts  tb*  iranipet,  the  niouib  by  which  they 
.'.dnaaDtl  ■hu  IB  the  afToratioo  price,  he 
bria(  rr«blrd  ami  i[nvenied  by  the  aOura- 
M>  al  MabdD  F— Yea ;  the  price  that  is  paid  at 
>*0B  b  always  paid  st  8t.  Phillip's. 

What  ia  Ibe  micral  law  f  Are  ibe  WmOT' 
y^  Hosenie'l  bt  tbr  English  or  tilpaniah  law, 
arabal  aiirt  7 — Yhry  always  plead  the  Hjianish 
ll*«,Mil  wataelllilhy  Ihe irraty  of  Utrecht; 
ht  vb^n  ibn  Kiigli<h  liwR  are  conrenient  fur 
(^•v,  iWy  pUad  Uiem. 

^  thai  wfakli  ia  ctmtenient  they  will  picail, 
-■^ *  -tar— Yet. 


iW-iwiip 
iVbi-iaUi 


A.D.  1773.  [158 

Bnt  which  is  the  law  that  moal  preTBJUF_ 
TheHttauisb  law.  When  the  island  tvae  given 
op,  I  btiliete  DOthioK  hi  all  was  seitleil  with  r«. 
lution  to  them,  and  Iherefure  we  were  sup- 
poseil  to  receire  thrni  upon  the  same  Inuting 
that  Ihe  French  bad  them ;  but  siace  that  tune 
they  made  interest  at  home  in  restore  lu  ibem 
Ihe  same  lawa  and  privileges  lliat  Imik  placa 
helbre  Ibe  island  whs  taken,  that  ia,  Ihe  Spa- 
nish laws. 

Were  you  there  when  Ibe  place  was  lakeo  br- 
ibe French  f—No;  I  was  in  America. 

Piay  what  is  the  temper  of  the  MinorquinabB 
general  f  Areihey  welleiTected  to  the  Eaghah 
govtrnmenl ? — Same aie  very  well,  t  believe; 
others  are  not  ao. 

Pray  do  yon  remember  the  occasion  F  wera 
you  one  of  those  that  were  invited  lu  meet  ^a- 
vemar  Itlotilyo,  wiib  the  other  gentlemen,  DpOB 
Ibe  occasion  of  being  coiisuitinl  about  Mr.  Fa- 
brigas  ? — I  was,  once  or  twice. 

Had  yon  been  arqnainled  thai  it  was  a  mat- 
ter of  public  uot'iriely  of  what  had  bappeneil 
with  regard  to  Pobrigai  f — 1  have  been  at  the 
presenting  several  memnriaU  to  Ibe  governor. 

Did  you  hear  of  tbe  report  ol'  what  had  pre- 
vailed, the  general  talk  of  ihe  place? — Yea. 

What  was  tbe  universal  opinion,  if  there  wu 
but  one  ?  or  if  there  were  vBrions  opioiDiia, 
ivbal  was  the  opininu  ol  you  and  Ihe  rest  of  the 
genilemen  thai  were  called  in? — The  opioion 
of  the  other  gentlemen  as  well  us  my  «wii 
was,  that  he  was  a  tery  dangerous  and  trou- 
blesome man.  fly  his  li>rii>er  history,  au^ 
Irom  antne  anecdutes  of  those  times,  it  waa 
IhuUElht  a  very  uii<iBle  thing  to  let  him  be  at 
liberty  ;  that  ii  would  he  a  righl  thing  to  lake 
him  Up,  and  bring  him  l<i  puniHbuienl,  lest  be, 
wbii  was  a  man  very  likely  to  be  prarlised 
upon,  would  luke  other  measures  productive  of 
mitchief. 

What  was  agreed  npnn  ? — It  was  in  loose 
converKatJon  thought  bisl  that  be  should  be 
banish  1^, 

According  to  the  practice  of  former  timet,  do 
you  rememher  a  pruciice  of  Ibiit  kind  having 
been  done  ?— I  have  tirnnl  of  several ;  whea 
Ihe  Eniflish  were  in  p-mi-ssinn  <•(  Ibe  island,  aa 
well  ar  when  theSpinisrda  were. 

Mr.  Lit.  Thix  M  uniting  a  prescriplioD.— 
A    I  tell  ynu  wbal  1  lisie  hrmd 

Srrj.  Glyna  li  io  impossible  that  it  can  be 
adniiltrd:  if  be  had  kuuwn  an  iustaace,  ba 
miff  hi  hate  men  tinned  ii. 

C'i'urf.  1 1  ia  nnt  question,  whether,  according 
Io  tlie  eiigcucc  nl  ilie  cose,  the  general  might 
ioHict  Ihii  hamslimcni  ?  and  another  thiag, 
whether  it  la  Ihe  urdaioed  law  eslalilishrd  id 
t Itch  a  case  to  be  applied  to  such  brhntiuur? 
Now,  if  you  go  inlu  a  usage  ul'  that  kind,  yan 
must  prove  particular  facti,  uoi  produce  ihit 

nieman  to  say  he  has  heard  such  things :  it 
not  Ibllow  from  hence  that  this  luigbt  ba 
Ibe  proper  puniabment. 

8erj.  Dam/.  You  have  known  general  Mot- 
tyn,  i  believe,a  great  while? — A,  Oolyslnce 
he  becuiM  goternor  of  Ihe  ialaad. 


1S9] 


U  GEORGE  III.  Actum  for  False  Imprisonment^ 


[140 


T  wigb  to  know  of  yoa,  what  is  hit  character 
and  beha? iour  ? — I  aUrays  beard  a  character  of 
him  aa  a  ffood  officer,  a  polite,  well-bred  mao, 
that  earned  bis  commaud  in  the  genteelest 
manner. 

Is  be  a  man  of  bumanitjr,  or  rather  ferocity  ? 
—I  always  understood  bim  to  be  a  man  of 
great  humanity. 

Cross-examined  by  Mr.  Txe, 

Q.  You  say  the  general  opinion  of  the  field- 
officers  was  asked,  of  which  you  are  one? — 
iL  I  do  not.  beliefe  the  geoeral  opinion  was 
asked ;  I  believe  it  was  private  conversation. 

Did  general  Mostyn  then  call  for  your  opi- 
nion, or  the  opinion  of  any  other  general  officer, 
touching  what  he  should  do  to  FabrigasP — 
jifterwards  we  thought  upon  the  subject. 

After  the  man  was  gone  to  Garthagena  P — 
The  same  day,  perhaps  an  hour. 

The  same  day  you  were  assembled  there  P — 

Yes. 

The  day  that  Fabrigas  had  spoken  of  as- 
aembling  a  number  of  bis  friends  together,  the 
general  sent  to  convene  a  body  of  you  P — Yes. 

Court.  You  were  a  field-officer  P—il.  Yes. 

Did  you  and  the  other  field-officers  meet  to- 
gether at  the  gjovemor's  P — ^We  came  there  by 
Eit  order,  by  bis  desire. 

Q,  He  proposed  to  you  then  for  your  opi- 
nion, what  should  be  done  with  this  man ;  and 
V0U9  partly  firom  the  former  history,  and  partly 
from  modem  auecdotes,  thought  he  should  t>e 
banished  P—il.  Yes,  1  did  so. 

That  was  the  ground  of  the  accusation; 
former  history,  and  late  anecdotes  P — Yes. 

Court.  I  shall  certainly  hear  his  evidence,  if 
you  ask  him  the  motives  and  grounds. 

Mr.  Lee,  I  only  ask  wheuier  1  bad  taken  it 
right 

Court.  Did  not  you  object  to  enquiring  into 
former  instances  of  banishment P 

Mr.  Lee.  No ;  he  has  spoken  of  former  in- 
atanoes  of  bad  conduct  in  Fabrigas. 

CL  Did  any  of  jrou  propose  to  the  general, 
or  did  be  propose  himself,  to  have  any  trial  of 
this  genUeman  before  his  banishment  P— jI.  I 
believe  he  never  did  propose  that ;  for  the  judges 
there  gave  it  as  their  opinion,  that  that  was 
lodged  entirely  in  the  governor's  own  breast ; 
two  of  them  particularly,  that  it  was  entirely 
in  his  own  breast 

And  needs  no  trial  at  all  P — 1  do  not  know 
that  there  was  any  form  of  trial  there. 

You  heard  of  no  trial  P — I  heard  no  trial 
mentioned. 

You  tell  me  the  opinion  of  the  field-officers 
was  this  P — Yes. 

As  I  don't  know  exactly  who  all  the  field- 
officers  were,  and  as  I  wish  to  deliver  as  many 
of  them  aa  I  could  from  the  imputation  of  that 
opinion,  pray  did  major  Norton  concur  in  that 
opinion  P— I  do  not  remember  particularly 
yrhether  be  did  or  not. 

Serj.  Davy.  That  is,  whether  he  was  there 
ornotP— il.  He  was  there,  but  1  do  not  remem- 
bar  what  hif  opinioD  wai  open  the  occaikip. 


Then  you  cannot  take  upon  you  to  sty  whe- 
ther it  was  a  majority  of  opinion,  pr  unani- 
mity of  opbionP — A  majority  of  opinion.  I 
believe  there  might  be  a  Uifference  or  opinion. 

Do  you  know  a  colonel  or  a  major  Rigby  ; 
I  do  not  know  what  rankP — Major. 

Was  he  there  P— Yes. 

Did  he  concur  in  that  advice  to  the  gover- 
nor P— Both  the  gentlemen  are  here,  and  can 
tell.  We  were  telking  among  one  another; 
our  opinion  was  in  general. 

Those  that  chose  to  give  an  opinion  in  fa- 
vour of  banishment  gave  it,  and  those  of  ano- 
ther opinion  either  might  give  it  or  were  silent P 
— It  vras  not  talking  of  giving  an  opinion,  but 
talking  of  the  man's  case,  and  what  ought  to 
be  done. 

Then  you  cannot  tell  what  number  dissented  P 
—No. 

Court.  Were  there  any  of  the  field-officers 
present  that  did  dissent  to  itP — A.  1  do  not  re- 
member that  any  did  indeed. 

Edward  Blakeney  sworn. 
Emmined  by  Serj.  Burland. 

Q.  I  believe  you  officiated  as  secretary  to 
general  BlakeneyP — A.  Yes;  I  was  there 
about  seven  years. 

What  sort  of  power  does  the  governor  exer- 
cise in  the  arraval  of  St.  Phillip's  P— There  is 
no  writ ;  nothing  can  be  executed  there  with- 
out his  commission. 

What  authority  does  he  execute  there  P— 
An  absolute  authority ;  it  is  a  royalty. 

Have  you  known  any  instance  of  people 
being  sent  out  of  the  arraval  P-7A  few  montha 
af\er  general  Blakene^'s  arrival,  he  banished 
two  Franciscan  friars  immediately  by  his  own 
authority. 

Where  did  be  send  them  to  P — ^To  the  con- 
tinent. 

Court.  Into  Spain  P — A.  1  cannot  tell  whe- 
ther to  Spain  or  Italy. 

Q.  from  Jury,  Was  it  in  peace  or  war  this 
happened? — A,  In  peacetime.  They  found  the 
way  to  Rome,  and  complained  to  the  general  of 
the  Franciscan  order,  who  corresponded  with 
the  general  upon  the  subject.  Several  letters 
passed ;  and  general  Blakeney  wrote  in  one 
of  his  letters,  if  they  did  not  behave  better  for 
the  future,  he  said  be  would  banish  all  the 
Franciscans  out  of  the  island,  and  make  bar- 
racks of  their  convent.  I  ntercession  was  made 
for  them :  they  asked  pardon  for  the  offeooe 
they  bad  committed,  and  upon  a  promise  of 
behaving  well  they  were  ailowea  to  come 
back. 

Did  you  ever  hear  that  the  power  of  the 
governor  upon  that  or  a  like  occasion  waa  erer 
called  in  question  in  the  island  P — No  ;  I  took 
it  for  granted  it  was  banded  down  by  the  Spa- 
nish governor,  and  they  were  governed  bj 
Spanisn  laws. 

Are  they  governed  by  Spanish  lawsP— Yce, 

We  are  told  the  arraval  is  a  distinct  juris* 
diction  fimn  thereat  of  the  istettdi  and  torn  m 


MI] 


Fahri^  v.  Mostgn. 


MM  aolbOTitv  MM'diwI  b^  the  gortmort— 
\m;  it  WwitbiD  KUn-ahot  of  the  foH.    The 


lln't  know  wbctber  jon  ra 
•iar  iaMuicea  of  baniihDMnt  I 


MUbi*.  Foot  reffimeDti  were  aeol  oat  by 
At  te  kiny,  to  ratine  four  t^idcqu  lb«t  had 
fan  «  longr  time  then  in  (he  ganifoo.  The 
fifcnor  KOeired  orden  to  send  home  erery 
oMwe  MoiwiDg  to  the  four  regiment*  then 
tea :  thej  bad  Men  many  ^ean  in  the  iiland. 
inpart  bad  been  msdetohim,  Ibatadnugbter 
(foaeof  the  miiitwrjr  people  wu  miMinff.  An 
tafBwj  waa  made:  ahe  wh  proved  to  be  lait 
I  priest  The  prieil ' 
Hting  any  tfa 
a  brought  bHbra 
Atgerenior;  he  gare  bail  nf  lira  people ;  (tbia 
*a(  a  military  affair  eotirel})  and  next  day  he 
■Mdcaned  to  produce  her.  He  did  not.  The 
pTwqi'  embarked  bioi  directly,  and  sent  bim 
«  baaid,  I  beh'eie,  in  the  very  tranapert  that 
WMteearry  thia  young'  nomao  away.  The 
iMtailcd  to  Gibraltar;  and  application  w»a 
^rfe  iaDBediBtcly  to  the  a;oTen>or  by  the  ma- 
airtraleaaf  Hahao,  and  by  the  religious  order, 
■miaftbe  gotemorto  forgive  him,  and  slay 
Ihaifcip,  Bad,  if  (be  gotremor  would  gire  leave, 
tapm  ('**JP'^  ■>"  l>oanl,  and  brin^  back  the 
jArnm-  Tbey  begged,  and  pelilioned,  and 
■ncd  tbe  governor.  Upon  that  the  girl  was 
MRBeal  up,  brought  Trom  the  ricar-general, 
•bind  at  a  remote  end  of  the  island.  She 
•M  baoghl  to  me.  The  alory  the  told  me 
•^Aat  tbe  vicar -general  had,  out  of  charity 
■Jwpaaaion,  lalteo  care  other.  She  wai  a 
njfKtty  giri.  She  caa  put  on  board  the 
tMMrt,  and  sent  after  the  Btet,  and  the  priest 
«M  Weugbl  back,  and  there  were  great 
^■(■fa  apOD  hia  arrival. 

Mr.  £e(.  Vou  know  how  little  material  that 
k 

Q,  Id  what  office  were  you  in  ibis  pli 
A.  ScCTCtary  to  the  governor  and  commander 
Bckicf  by  ui*  king's  commission. 

Wben  Jid  you  go  flrat  ?— In  the  year  IT*9. 

Tea  were  in  Minorca,  Ifancy,  whenapoaitive 
from  England,  that  if  any  I'riar  of 
!an  order,  not  a  native  ol'ihe  island, 
Atald  CMMf  ibto  that  islanil,  he  should  nut  be 
■rimd  lo  remain  upon  it?  Do  you  koon  of 
lay  aucfa  order  in  the  first  pUc«  ? — Be  so  good 
M  IB  rppeat  llw  order. 

■*  That  in  caie  any  friar  of  Ihe  Franciscan 
Oder,  opt  being  a  native  of  Minorca,  but  an 
Jdarram  friar,  ahall  come  into  the  island,  be 
iktU  Bot  be  permitlvd  to  take  his  reaidence 
Ane,  Ace."  Vuu  don't  recollect  any  thing  of 
Ms,  or  (hat  it  was  in  obedience  tu  (he  onler 
if  eoGDcil  ibat  this  Franciscan  was  sent  away  f 
bsjoa  tbrget  this,  though  it  happens  unfur- 
laately  when  the  g^emor  obeys  the  order  of 
banperior,  Ihatianowlobeauoted,  aiapre- 
Mdmi  offaja  CWD  r^al  uitbonty  f 


A.  D.  177S.  [149 

WbM  wa*  tbe  prirnt  f — A  native  of  Minorca. 
And  Ibe  friar  t— I  understood  them  to  be  Hi> 
norqoin*. 

Can  you  lie  positive  about  that  F>~I  do  be- 
lieve that  aa  a  certainty  and  a  fact:  I  am  mo- 
rally certain  of  it;  I  ivai  not  preMol  at  their' 


lt» 


tn*  that  yon  have  forgot  even  that  nicb 
r  existed,  till  1  reminded  you  i—I  am 
not  deKT  Uiat  I  remembered  anch  an  order  ex- 
isted; 1  hare  been  orer  agreat  dealofgrotmd 

Was  It  IheDBlnreofyoor  office  to  acquaint 
von  with  ail  the  orders  of  Ibe  council  of  Eng-  ^ 
land? — It  came  through  my  bands,  yet  very 
likely  and  probably  I  lurgotit. 

But  yon  might  not  have  forgot  it  at  the  tim« 
the  friara  were  ordered  away  f 

Mr.  Lte.  This  was  b  1753.— J.  That  k 
langsnbaeqnoit:  the  affiurof  tbe  fiiar  wa*  ui 
1743  or  1T49. 

Serj.  Bur/and.  Then  yon  admit  that  the 
king  basa  right  to  make  such  orderap 

Serj.  G/ynn.  No;  the  conocil  may  maka 
such  orders,  but  we  do  not  admit  tbem  to  Im 
legal. 

Court.  The  case  of  the  prieit  was  eome 
yeara  al^er  tbe  case  ofthetwo friars?— J.  Not 
a  great  while ;  about  a  year  1  believe,  sooM 
such  lime:  it  is  a  great  many  yeara  ago;  I 
cannot  be  powtiveto  a  few  months. 

Captain  Jatuci  Solaire  aworn. 
Examined  by  Mr.  Seijeant  Walker. 

Q.  I  think  you  are  a  natitt 


You  know  Mr.  Fabrigas? — Not  very  parti- ' 

I  thoD 

Phillip's  f— 

You  hare  teen  him  there  P — Several  times. 

What  sort  of  a  temper  and  disposition  baa 
he? — 1  cannot  answer  very  particularly. 

Do  you  know  any  thing  of  his  ^tneral  cha- 
racter?—No  j  I  do  not 

Serjeant  Burland.  I  hare  a  very  long  anil 
reapectable  lilt  of  persons  here  to  speak  to  tha 
cbs ranter  of  general  Mostyn,  and  hiag'tneral 
behaviour :  f  suppose  ibe  gentlemen  on  lh« 
other  ude  don't  dispute  Ihe  general  character 
which  haa  been  given  of  him. 

Seijeanl  Glynn.     I  shall  out  make  the  least 

Btirropt  to  asperse  general  Moslyo'a  characters 

I  shall  found  mysdrupon  tbe  facts. 

Raphael  Prato  sworn. 

Examined  by  Mr.  BuUer. 

(He  not  ipcabiog  English,  an  interpreter  wai 

Q.  Do  you  know  Mr.  Fabrigas  the  plaintiflT 
—A.  Yes. 

What  character  has  he  home  for  some  yean, 
past  in  the  island  of  Minorca  ?  Is  be  a  peaea- 
able  man,  or  what? — A  troublesome  man,  that 
meddles  too  much  with  aiain. 


US] 


14  GEORGE  m. 


Actimtfir  Fake  Impi'UommetU^^ 


(144 


WhataflMiBdo  you  umnf-^WA  tbe  go- 


Court,  The  quMtion  i«,  whether  opoB  the 
Iheli  and  cireomitaiiecf  of  the  traiiHictioo  it- 
gtlft  the  ({iraarsi  wet  joftified  is  what  he  did ; 
•Iberwiee  they  may  enpty  the  iilaod. 

Mr.  Lee.    Yet,  this  ishnd  of  all  the  people. 

Q.  to  Mr.  Wright,  Yoa  deliTered  in  theae 
difereat  memoriala  aod  papera :  all  that  yoit 
debt crcd  io,  are  they  genoioe  Pf  para  or  oapiea 
of  papera  that  were  prciented  io  MiaorcaP^- 
A,  All,  except  the  last,  which' waa  deUvered  to 
the  geoeral'a  aid-de-cmp,  were  deUrerad  to 
BM  ;  thai  ia  eadoiaad  oo  the ' 


Reads: 


^  To  hia  exoelleiicy  general  Moa^o,  co- 
vemor  and  commander  io  chief  of  theislaod  of 
Minorea,  ke.  The  hamUe  Petitioo  of  Antonio 
Fabriga8,a  aatireand  inhabitant  of  hk.  Phillip'a 
IB  the  aaid  ishmd,  abewetb,  that  your  petitioner 
baa  now  by  him  twehre  eaakt  of  wine,  the  pro- 
duoe  of  bis  own  rineyard,  without  baring  par- 
ohaacd  ao  much  aa  a  grape  of  any  other  per- 
son, of  which  he  baa  not  aold  a  drop,  when  ae- 
?eral  other  inhabitants  of  the  said  town  hare 
told  all  theirB»  aa  well  of  the  produce  of  their 
own  Yueyarda,  as  that  proceeding  from  what 
they  bought  to  make  a  profit  by ;  and  this  with 
the  permit  of  Mr.  AUimondo,  who  docs  the 
function  of  mostaatapb.    That  the  petitioner, 
nnthe35tb  of  July,  applied  to  the  aaid  Alii- 
mundo  for  meuures  to  sell  wine  by  the  rate  of 
two  douUera  less  than  the  current  price,  which 
would  bare  raised  a  benefit  to  the  troopa  and 
poor  inhabitants  of  St.  Phillip's ;  bat  notwitb- 
itanding  this  demand  was  ve^  reasonable,  and 
confbrmable  to  the  express  condition  of  the  first 
of  his  mijesty's  regulation  of  the  17th  of  May 
175S,  regarding  tnis  island,  where  it  is  ex- 
pressly mentioned  that  the  inhabitants  of  this 
island  shall  always  be  permitted  to  sell  at  the 
price  of  the  afforatioo  or  under  it,  Mr.  Alllmundo 
reftised  your  petitioner,  telling  him  he  should 
not  sell  his  said  wine.    And  aa  this  is  not  only 
•gainst  the  reaaon  and  justice  of  the  public, 
and  the  garrison  of  St.  Phillip,  but  also  contrary 
to  his  mi^esty's  order  in  the  said  reguhition, 
where  it  is  mentioned  that  the  inhabitants  may 
■ell  their  wines  whenever  thejr  please  without 
any  permit,  under  the  afforatioo- price  in  the 
island  ;  therefore  he  prays  your  excellency  will 
be  pleased  to  order  Mr.  Allimundo  to  be  more 
reguhu*  in  this  ffor  he  baa  made  above  50  casks 
or  wine  himself,  of  grapes  he  bought  to  make 
a  profit  bjT,  of  which  he  sold  more  than  the 
half,  in  prejudice  of  those  persons  who  have  old 
and  new  wine  by  them),  and  to  give  your  peti- 
tioner the  correct  and  just  measures  at  the  albre- 
WM  rale  of  two  doublers.*' 

Conrl.  There  is  no  date  to  this  petition,  I 
observer— il.  No. 

Mr.  Uo^d.  It  is  marked  on  the  back,  '*  deli- 
Tared  the  Slat  July,  1771." 

•  The  next  ia  iDclaaad  m  the  answer  of  tho 
■mstastaph's  feplj  to   Fabngaa  the  7th  of 


Aagnst,ini.    *«TobiaexoelleBeyrii      

gOMral  Mostyn,  governor  and  oooasanderui 
chief  of  the  isfand  of  Minora,  The  hnmble  P^ 
tition  of  the  nnder-writlen  iohabitanta  of  iha 
aoburbs  of  St.  Phillip's,  shews.  That  daring  Ifan 
government  of  hia  excellency  heulenantpyo* 
vemor  JohnBton,  onaecount  of  some  oeasplaiBin 
that  were  made  oooceroing  the  direciioo,  aaA 
selling  wine,  a  regulation  waa  made  in  the  fiiil« 
lowiiiir  manner :  that  the  sobtirbs  of  St.  Phll*^ 
lip'a  iihsil  be  divided  into  four  wards  ;  _that  iha 
people  ahall  draw  lota;  that  tfaey  who  ahnll 
eooie  out  shall  have  the  liberty  to  aell  their 
own  wine,  the  aooidenta  of  the  casks,  and.  the 
prelereooe  of  the  poor  helplefa  people  being 
eotirdy  under  the  direction  of  the  mustaalanh. 
That  regulation  was  accepted  by  tbeinlmbi- 
tants  of  the  auburba,  and  they  are  glad  of  iia 
continuance  aa  it  is  observed  to  this  diay.  They 
have  heard  that  some  of  the  inhabitanta  are  in« 
tending  to  destroy  the  aforesaid  regulation^  io 
order  that  every  one  might  sell  tbeir  wine  at 
the  place  they  please,  without  dividing  tli» 
wards.  This  will  be  not  only  the  total  roin  of 
the  inhabitanta,  but  it  will  also  make  them  cam- 
less  in  the  culture  of  their  lands,  and  leaa  can- 
ful  in  making  their  winea,  and  consequently 
there  will  be  very  little  wine  of  a  good  quality  ; 
therefore  your  petitionera  humbly  crave  yoor 
excellency  to  be  ao  good  aa  to  cast  an  eye  of 
pity  upon  them,  in  not  permitting  thatauch  a 
good  regulation  ahould  be  ever  altered :  and 
as  in  duty  bound  shall  ever  pray."  SigaaA 
by  58. 

Serj.  Glywu   Are  they  maika  or  DaiDea?««* 
A.  Most  of  them  marks. 

Directed  to  lieutenant-general  Mostyn. 

**  The  humble  petition  of  Antonki  AUimondo, 
mustastaph  of  St.  Phillip's,  sheweth,  that  your 
excellency  desiring  to  be  informed  about  aneli<* 
tion  made  by  Anthony  Fabrigas  of  St.  Philiip'a^ 
relating  to  the  selling  of  wine,  says,  that  for- 
merly the  aelling  of  the  wine  of  the  iohabitanta 
of  »L  Phillip's  waa  under  the  direction  of  the  ' 
mustastaph  of  that  suburb ;  but  as  aeveral  dia* 

fmtes  and  difficulties  arose  from  this,  his  exoel- 
ency  lieutenant-governor  Johnston  found  it 
proper  to  make  a  regulation  for  the  sdiiog  of 
the  wine,  which  was  accepted  with  an  entira 
satisfaction  by  all  the  inhabitants  of  St.  Phil« 
lip's,  and  bv  them  practised  to  this  day.  At 
the  time  1  bad  the  honour  to  be  made  mustaa- 
tapb  of  that  suburb,  the  aforesaid  regulation 
was  in  ils  full  force  and  execution,  and  the  aaid 
lieutenant-governor  charged  me  particularly  ta 
have  it  carefully  observed.  In  consequenoa 
of  this,  the  said  Anthony  Fabrigas  having  ap- 
plied to  me  a  few  days  ago  fur  tlie  measures  la 
sell  his  own  wine  two  douhlers  cheaper  thaa 
the  common  price,  I  thought  it  was  impiissibia 
to  grant  it  to  him  wiihout  forfeiting  the  dn^ 
of  my  employ,  because  his  demand  uuoo** 
trar^  to  the  aaid  reifulaiioo,  by  wbioh  the  ia*  ^ 
habitants  of  that  auburb  are  permitted  to  soil  , 
their  wiao  only  by  tuna^  after  Ihay  haw 


145J 


fiMga$  9.  MottjfH. 


A.  D.  1T7S. 


im 


fawn  loll ;  for  wbich  letiOD  your  petitioner 
laU  the  aid  Fobrigu,  that  he  oould  not  tell 
hb  wine;  inlendiDH^  to  say,  by  this,  that  he 
not  kU  it  in  the  manner  he  had  proposed, 
lit  to  tmjt  without  drawing  lots,  it  being  in- 
■stent  with  the  rtaid  regulation ;  thinking  it 
m  hlo  dutj  to  liave  it  omerved  till  such  time 
« joar  ezcelleiicy  or«lered  him  to  the  contrary. 
li  the  former  petiti<in  he  had  the  honour  to 
fUKnt  your  excellency,  he  thinks  to  haire  the 
CHW  privileges  with  other  inhabitants  of  St. 
nOKp's,  that  is,  to  buy  grapes,  to  make  wine, 
aid  sell  it ;  and  le^des,  seeing  that  his  prede- 
Mwnii  sold  this  wine  when  they  pleased,  not- 
vilhUaiidiiig  the  said  regulations,  he  thought 
Ihtt  tlie  mintastaph  of  8t.  Phillip's  was  not  in- 
chded  in  it ;  in  which  case  your  |»etitioner  did 
Ml  think  it  was  proper  to  prejudice  his  rights, 
•r  iboie  of  his  successors,  unless  your  ezceU 
kncy  ordered  him  to  the  contrary  ;  but  to  com- 
ply with  the  inhabitants  of  that  suburb,  that 
Acj  nit^t  be  satisfied,  your  pelilioner  always 
inosed  n  role  upon  himself  to  sell  his  wine  at 
iltient  times,  and  sometimes  b^  the  gross, 
■mnoch  that  most  of  the  inhabitants  of  that 
Mbwb  have  sold  the  half  of  their  wine,  whilst 

rpeiitiooer  has  not  yet  sold  a  third  part  of 
It  Anthony  Fabrigas,  or  his  father,  says, 
Aat  he  will  not  sell  his  wine  under  the  com- 
MB  price,  and  that  he  has  sold  none  of  it  as 
nl,  tke  former  having  none  to  sell,  the  reason 
■  aaly  becauoe  his  turn  did  not  come  at  the 
when  the  lots  were  drawn,  to  which  all 
of  the  inhabitants  of  St.  Phillip's  are 
but  his  wine  will  be  sold  when  his 


shall  come." 

1W  PETiTioir   of  Anthony  Fabrigas,  Aug. 
Idth,  177 1,  directed  as  before. 

*11ie  humble  petition  of  Anthony  Fabrigas. 
Ob  the  Slat  of  July  1771,  the  petitioner  had 
At  honour  to  present  a  memorial  to  your  ex- 
edkncy,  shewing  the  tran^igressiim  and  non- 
aiaerTaiioe  in  the  said  town  of  tno  regulations 
given  on  the  8ih  of  May  1752,  by  his  Britan- 
nic majesty,  6ic.  Sec,  viz.  thnt  any  native  or 
jihahitant  of  this  island  shall  be  permitted  to 
aril  bis  fruits  at  the  fixed  price  of  the  afforation, 
without  any  person's  authority  :  secondly,  that 
no  eoirmander,  judge,  nor  officer,  directly  or 
indircGlly,  for  himsflf  nor  through  any  other 

noos,  nhall  he  allowed  to  have  any  concern 

any  traffic,  bargain,  or  connurcc  wbatso- 
:  your  petitioner  having  likewise  repre- 
.«.^^  U>  your  excellency  that  Antonio  Alli- 
Moodo,  who  does  the  function  of  mustastaph 
in  Ht.  Phillip's,  haa  Itoui/ht  grapes  to  make, 
as  lie  rvally  maifeafterwardo,  50  casks  of  wine, 
af  which  he  s«>ld  more  than  one  hall',  in  prrju- 
ol  the  inhabitants  of  ii»t.  Phillip's,  who 
the  old  wine  by  them;  and  that  your  pe- 

_er  waotetl  to  enjoy  the  liberties  granted  to 
bin  in  the  said  regulations,  offering  to  sell  to 
Ihe  inhahitauts  and  garrison  of  St.  Pbilhp's, 
12  ra«fcs  of  wine  he  has  by  him  of  his  own 
induce,  at  two  doublers  less  than  the  ordinary 
iiurataoo  or  fixed  price,  dsc.  yesterday,  the 

VOL.  XX. 


19th  of  Aujpist,  your  excellency's  leeretary* 
told  your  petitioner  verbally,  &c.  at  which  year 
petitioner  was  greatly  surprised ;  as  he  is  ready 
to  prove  judicially,  before  any  one  of  his  ma* 
jesty'sjudges  of  this  island  that  yourexoelleticy 
may  think  proper  to  appoint,  all  that  he  hng 
said  in  his  last  snd  this  present  proposal ;  in 
which  caae,  &c.  beiog  sure  from  the  instice  ho 
has  in  his  favour,  and  from  your  excellency'o 
good  administration  to  administer  it,  prayo 
your  excellency  will  be  pleased  to  give  his  de- 
cree at  the  foot  of  this  memorial  to  your  peti* 
tioner.  He  hoiies  thereby  to  be  at  liberty  to' 
sell  his  wines  at  two  doublers  less  than  tha 
afforation  set  by  the  mustastaph  of  St.  Phil- 
lip's, &c.  and  that  the  mustastaph  hss  acted 
unbecomini''  the  office  he  exercises  of  musta- 
staph of  St.  Phillip's ;  which  being  evidently 
proved,  will  undoubtedly  oblige  your  excel- 
iency  to  give  the  necessary  orders  for  the  relief 
and  better  advantage  of  the  inhabitants  and 
garrison  of  St.  Phillip's." 

Serj.  Gfynn.  May  it  please  your  lordship, 
and  you  gentlemen  of  the  jury,  to  favour  me  in 
this  cause  by  way  of  reply.  Considering  the 
length  of  time  that  has  been  spent  already  in 
this  cause,  I  should  ask  your  pardon  and  in- 
dulgence for  adding  more  than  1  could  wish  to 
the  time  that  you  have  already  spent,  in  an- 
swer to  those  arguments  that  have  been  used 
in  behalf  of  the  defendant,  and  in  submit- 
ting to  you  such  observations  as  occur  to  me. 
For,  gentlemen,  the  cause,  as  1  conceive,  hav- 
ing already  \«andered  very  far  from  its  true 
merits,  and  being  perplexed  with  matters  very 
foreign  to  the  question,  it  is  incuinbent  upon 
me  to  make  such  an  attempt  as  my  powers  will 
enable  me  to  do,  to  recal  your  attentk>n  to  the 
real  and  true  question  in  tliis  cause. 

The  question,  gentlemen,  is  shortly  stated ; 
the  discussion  of  it,  however,  requires  some 
time.— The  question  is  merely  what  satisfac- 
tion and  reparation  Mr.  Fabrigas,  a  subject  of 
Great  Britain,  as  much  as  any  man  even  bom 
in  the  city  of  London,  has  a  right  to  demand 
for  the  treatment  he  ha^  received.  He  is  a 
native  of  the  island  of  Minorcii,  born  in  the 
Britannic  dominions ;  and  his  lordship  will  tell 
you  that  every  person  that  is  so  born  is  a  free- 
born  citizen  of  Great  Britain,  intitled  to  all  its 
liberties  and  privileges. 

The  question  therefore  is,  how  a  man  thus 
circumstanced  is  intitled  to  have  his  case  con- 
sidered by  an  English  jury,  and  what  satisfac- 
tion you  shall  think  due  to*  him  for  such  kind  of 
treatment  as  he  has  undergone ;  such  tortures 
of  the  most  studied,  and  the  most  perplexing 
and  excruciating  kind,  (if  you  take  into  consi- 
deration the  feelings  of  h  man's  mind,  as  well 
as  his  corporal  sufferings)  as  have  by  the  wan- 
tonness of  power  been  inflicted  u(Km  him. 

Gentlemen,  in  the  discussion  of  this  question, 
1  shall  now  barely  mention  to  you  one  topic 
upon  which  a  great  deal  of  your  time  has  been 
taken,  and  which  1  mention  merely  for  the 
pnrpota  of  clearing  the  cause  of  it,  and  die- 


147] 


H  GEORGE  IIL 


Actimjbr  False  ImprUonment^^ 


[148 


nliMng  it  totally  from  yoar  considenUion ; 
and  that  ia»  what  respects  tbe  character  of  Mr. 
Mostyn  the  defeudaot.  You  are  told  of  tbe 
high  and  respectable  names  of  great  men  that 
bare  given  their  attendance  here  to  coonte- 
nance  that  character  which  you  are  told  Mr. 
Alostyn  indisputably  possesses.  My  answer  to 
it  is,  that  if  be  bad  brought  the  pnYy-4souncil, 
if  be  had  come  with  testimonials  in  his  hands 
ftom  the  two  houses  of  parliament,  it  would  not 
hare  fsried  the  consiueration  of  this  cause. 
Tbe  question  here  is  wide  of  all  consideration 
of  character :  vou  must  decide  it  upon  the  facts 
which  appear  before  you  in  evidence,  and  from 
them  you  must  judge  of  the  merits  of  lliis 
cause.  The  motives  of  Mr.  Mostyn's  conduct, 
and  every  circumstance  that  is  material  or  re- 
lative to  that  question,  you  are  to  decide  upon ; 
and  beyond  that,  gentfemen,  it  is  neither  my 
desire  nor  my  duty,  it  is  far  from  my  province, 
and  far  from  my  inclination,  to  attempt  throw- 
ing any  kind  of  calumny  or  aspersion.  Let 
Mr.  Mostyn,  with  all  my  neart,  ir  he  can,  re- 
concile that  conduct  that  has  appeared  before 
yon  to  such  a  character,  to  that  verdict  which 
1  am  confident  you  must  pronounce  upon  this 
cause.  Let  Mr.  Mostyn  eiyoy  tbe  eaieem  of 
his  great  and  noble  Iriends ;  I  have  no  desire 
to  deprive  him  of  it :  I  have  however  a  zeal  fur 
the  justice  of  this  coimtry,  that  goes  something 
beyond  the  mere  line  and  duty  of  an  advocate, 
—1  owe  it  to  humanity,*— I  think  it  is  a  ques- 
tion of  humanity,  not  depending  upon  tbe  par- 
ticular laws  of  any  country :  but  it  is  a  ques- 
tion highly  aflectmg  the  honour  of  the  British 
nation,  and  a  question  that  will  throw  disgrace 
upon  our  laws,  oiur  constitution,  and  the  hu- 
manity of  our  judicature,  if  this  man  should  bo 
sent  Iwck  into  the  island  of  Minorca  with  his 
wrongs  unredressed,  and  an  accumulation  of 
ezpences  upon  him. 

I  own  therefore,  gentlemen,  upon  these 
grounds  and  these  considerations  1  fed  a 
warmth  and  a  zeal  in  this  cause,  which  I  hope 
will  justify  me  for  the  pains  that  I  mean  to 
take,  if  my  strength  will  support  me  in  it,  in 
laying  before  you  what  I  conceive  necessary 
for  your  consideration.  I  have  said,  that  I 
mean  to  deprive  general  Mostyn  of  nothing 
that  is  not  necessary  to  tbe  reparation  of  the 
wrongs  of  this  much-mjured  plaintiff;  that  be 
•ball  enjoy  his  good  name  and  his  character 
as  far  as  my  doty  will  permit  him  to  enjoy 
them  ;  1  shall  maze  no  observations  upon  him 
but  what  arise  from  the  cause  now  bmre  you. 
1  have  some  reason  to  wbh,  and  to  cximplain 
Ibat  the  like  conduct  has  not  been  observed  on 
the  other  side.  General  Mostyn  is  to  be  graced 
with  the  countenance  of  great  men;  and  a 
plain  En^ish  jury  is  to  hear  the  titular  testi- 
monies ot  the  character  of  a  man  invested  with 
a  high  office,  in  high  power,  and  possessed  of 

Kt  riches  ;  yet  ih%  cbsracter  of  a  poor,  un- 
ly,  helpless  individual,  an  inhabitant  of^an 
islaod,  part  of  tbe  territories  belonging  to  tbe 
crown  of  Great  Britain  (confident  too  that  be 
lifed  under  the  pielectioo  of  tbe  ooBStiliitM»  of 


Great  Britain,)  is  to  be  treated  as  a  subject  of 
ridicule,  because  he  is  not  a  man  of  high  rank, 
though  you  are  told  he  is  a  man  of  charader 
and  of  fortune,  such  as  has  intitled  and  recom- 
mended him  to  the  company  of  men  of  rank-sa 
that  island.  Have  we  not  some  reason  to 
complain,  that  such  matters  are  now  introduced 
to  reoutt  his  just  and  well-tbnnded  expectatione 
to  receive  aatisfaction  from  an  English  jury 
for  tbe  wrongs  he  has  already  sustained  ? — u 
it  not  eneogh  that  this  man  has  endured  «■ 
imprisonment  of  six  day  a,  under  the  must  UDf 
|>aralleled  hardships  of  rigour  and  cruelty  tba| 
can  be  inflicted  upon  a  human  being  ?  is  it  not 
enough  that  he  has  endured  a  banishment  from 
his  native  country  ?  but,  to  heap  calumny  and 
obloquy  upon  the  head  (»f  a  man  that  he  baa 
iiiiuied,  shall  be  with  impunity  be  permitted  te 
digress  wide  from  the  tacts  in  this  cause,  to  tell 
you  that  he  is  a  profligate  idle  map  ;  that  with 
a  family  be  neglects  aJl  the  duties  of  a  husband 
and  the  master  of  a  family  ;  that  he  is  devoid 
of  moral  character  ?  Is  a  poor  helpless  straamr 
In  this  kingdom  thus  te  ne  represented,  after 
having  ben  driven  out  of  his  own  by  cruelty 
unparalleled  in  tbe  British  history?  Nor  can 
any  history  be  produced,  even  of  any  other 
country,  tliat  did  not  receive  a  most  signal  die- 
countenance  from  tbe  power  of  that  country, 
A  man  thus  driven  out,  seeking  refuge  fram 
tbe  English  laws,  firiendlesB  in  this  oountryp 
ignorant  of  its  language,  is  treated  in  tba 
manner !  A  gentleman  comes  forth,  and  eu- 
tertains  you  with  tbe  oonnezions,  chareder, 
and  acquaintance  of  the  powerful  defendant  s 
he  then  enters  into  the  private  conoerns  eod 
private  character  of  the  plaintiff,  and  dwdlg 
upon  the  ignominy  of  it,  and  endeavours  te 
impress  you  with  a  prepossession  that  it  will 
not  be  in  "his  power  to  remove  it.  I  trust  thy 
conduct  has  not  escaped  you.  Not  a  word  bee 
fallen  from  us  of  tne  character  of  ffeueral 
Mostyn ;  1  mean  on  that  head  to  be  simt  for 
ever ;  and  if  I  had  it  in  my  power  to  eeperae 
his  character,  unless  it  was  something  relative 
to  the  cause,  that  made  it  my  duty  to  produce 
it  before  you,  l«should  be  very  silent  about  it. 

Having  dismissed,  I  hope,  from  the  caoee 
these  considerations,  let  us  now  recur  to  the 
defence  that  is  set  up  by  general  Mostyn. 
And,  gentlemen,  the  defence  set  up  by  the  ge- 
neral is,  that  Mr.  Fabrigas  is  a  man  dangerous, 
aeditious,  and  turbulent;  that  he  was  in  the 
act  of  perpetrating  sedition  in  the  garrison  of 
Minorca ;  that  there  was  danger  even  of  the 
loss  of  Minorca  itself;  that  it  afl'ected  the  com- 
mercial interests  of  this  country  ;  and,  as  well- 
wishers  to  this  country  and  the  commerce  of. 
it, you  are  called  upon  to  give  a  verdict  for  the 
derandant,  or  to  reduce  the  consideration  of 
damages  so  as  to  pronounce  something  worse 
for  the  pbuntiff,  if  possible,  than  even  a  verdict 
for  the  defendant. — Gentlemen,  their  state  of 
it  is,  that  this  man,  Mr.  Fabrigas,  being  a  fac- 
tious, turbulent,  and  nnouiet  man,  was  pursu- 
ing general  Mostyn  witn  an  improper  impor- 
tnoity }  that  he  was  eudeavounng  to  apctud 


I49J  FoMgoi  «.  Modj^ 

lidiiMt  to  raise  dinooteals  in  the  girriMm  it- 

•dr  Ibat  aflcdcd  the  very  wahnj  of  the  ffo- 

•ad  the  iibuid  was  in  danger;  thel 

a  threat  that  wenM  hate  made  ge- 

if ostjB  reepoaaible  with  hie  bead,  if  be 

Waol  preveotca  tneb  a  fobemefironi  being 

aniad  ioto  eieeiition ;  that  be  said,  if  bb  pe- 

iha  waa  agata  refected,  that  be  wonld  eonae 

tf  Ibe  head  of  150  flaen,  a  menaee  represented 

a  if  it  Bpported  a  threat  that  be  would  come 

m  Iha  bead  of  an  armed  force :  such  was  the 

SMBtroetioB  bis  eounsrl  put  apoo  it,  that  be 

aeald  appear  ia  such  a  way,  as  to  make  it  ne- 

mtmry  far  the  gencial  to  comply  with  his  de* 

■sada  ;  that  there  was  bo  end  of  all  gorern- 

■sat  aad  all  order  in  the  iiland  of  Minorca, 

«d  a  valuable  part  of  the  British  dominions 

by  Ihca  at  the  merc^  of  our  enemies.    Gen- 

Ibssea,  thie  is  a  well-drswn  picture,  and  was 

my  powerfully  urged  to  you.    It  was  some- 

over>paiBled,  as  I  conoeire  jrou  will 

And  the  necessity  of  doing  it  is  an  ob- 

ioa  that  will  aot  escape  you ;   for  less 

this,  1  do  conceire  (I  rest  myself  satisfied 

'btha  general  humanity  tbtt  prevails  in  the 

bassts  of  Baglisbmen,  and  iohahitants  of  the 

oiy  ef  London)  less  than  this  could  never  have 

BvVed  aa  any  colourable  justification  for  such 

swdnet   aa    has  been  proved   upon  general 

Msstyn:   this  therefore  was  necessary  to  he 

UMsd  to  yon,  that  it  was  extorted,  (contrary 

li  Iha  feelings  of  bumsnity  which  are  said  to 

nmy  and  influence  that  gentlemtn  in  all  his 

emdnei)  tliat  this  was  extorted  from  necessity ; 

Ihsl  there  was  no  time  for  cousideration ;  that 

itnaa  aa  eroerpfency  he  was  required  to  decide 

i;  it  snpeneded  therefore  all  forms ;  it  was 

ly  necessary,  for  bis  i^rovernment  would 

exiKted  if  be  had  been  at  all  induced 

one  it ;  and  that  possesnion  of  which 

kt  wMM  tlie  guardian,  and  for  which  he  is  said 

Is  be  tesponsible  with  his  head,  vi  as  in  danger 

if  being  for  ever  lost  to  Great  Britain.     1  can 

if  e  a  ease  like  that,  adding  more  circum- 

than  even  the  ingenuity  of  the  couniel 

ubich  would  not  justify,  though  it 

It  extenuate  indeed,  the  conduct  of  the 

naader.     But  waa  there  any  thing  like  it 

this  case  ?  This,  1  submit  to  yoa,  gentle- 

le  tbst  the  counsel  thought  neces- 

lo  o|ien ;  and  less  than  this  furnishes  no 

or  colour  of  justification  for  general 

Inalyn.      Gentlemen,  when  this  cause  was 

opened  to  yuu,  and  when  the  general's  de«' 

fcnec  waa  stated  to  you,  that  the  general  was 

ohiigod  to  act  in  an  emergency  ;  bonnd  by  the 

wmn  religious  of  ail  duties,  to  look  with  cir- 

cnmspection  to  the  care  of  the  garrison  in  in- 

naal  danger,  it  was  necessary  to  act  as  he  did ; 

h  was  an  act  therefore  not  of  inclination  nor  of 

dshheration,  it  was  an  act  of  absolute  cogent 

irrceikuMe  neces^ty,  and  which  he  had  been 

najoaiifijbte  if  be  bad  either  omitted  or  de- 

irrrcd  for  a  dar.     That  is  the  nature,  and  that 

is  ibe  colour  of  the  general's  justification :  but 

did  the  general  know  how  different  the  case 

thu  would  appcv  upon  evideooa  wouU  be 


A.  D.  1773. 


[150 


firom  that  which  be  had  instructed  his  coaasel 
to  represent  to  vouP  it  was  necessary  that 
the  defeace  should  be  guarded ;  and  then  thera 
is  a  prefiitory  defence  made,  which  in  my  opi- 
nion very  mucli  deserves  your  consideration. 
Gbneral  Moatyn,  with  the  prodeooe  that  from 
this  hour  1  smII  think  makes  psrt  of  hb  cha- 
racter, chose  to  decline  the  jurisdiotion  of  an 
Englbh  jury.  I  don't  wonder  that  be  did ; 
and  1  am  not  smased  that  you  are  told  that 
th|a  M  a  noatter  extraneous  to  the  jurisdiction 
of  the  courts  of  judicature  in  this  countrr  } 
that  you,  as  a  jurv,  are  incompetent  for  its  de« 
dsion :  it  b  of  all  cases  in  the  world  that  case 
which,  as  a  defendant,  general  Mostyn  must 
be  inclined  to  w»h  might  never  appear  before 
an  English  jury,  it  is  a  tribunal  that  he  must 
dread;  it  b  a  tribunal  that  he  must  shrink 
from  ;  and  be  acts  upon  the  soundest  motives 
of  policy  and  prudence  when  he  endeavours  to 
evade  it.— If  that  should  prove  insufficient  to 
him,  the  next  resort  is  in  the  general  law  and 
doctrine  resfiecting  the  power  of  the  governor 
in  the  island  of  Minorca;  and  you  are  re- 
peatedly cautioned  not  to  consider  yourselves 
as  administering  justice  by  the  laws  of  Bog- 
land.  You  are  told,  that  you  are  deciding  a 
3uestion  of  the  laws  of  another  country,  far 
ifferent  indeed  and  materially  opposite  to 
those  of  the  laws  of  England :  you  are  called 
upon  therefore  to  judge  thb  cause  by  another 
rule,  and  by  another  standard,  than  that  which 
you  are  in  the  habit  of.  Considering  and  try- 
ing causes  by  something  more  than  this  mitft 
be  desired  of  you,  before  the  ends  of  the  de- 
feodant  can  be  completely  answered.  Yoa 
are  desired  to  divest  yourselves  too  of  the  feel* 
ings  of  humanity  ;  and  they  are  endeavoured 
to  be  suppressed  by  representing  to  you  circum- 
stances of  horror  and  danger  to  the  general 
trade  of  this  country,  in  case  you  should  sufier 
even  principles  of  law,  of  justice  and  iiumaoity, 
to  prevail  in  this  cause.  Gentlemen,  it  waa 
stated  to  you,  that  in  this  island  of  Minorca 
there  is  no  law  whatsoever;  that  the  form  of 
government  is  despotism;  that  what  may  be 
called  the  law,  is  the  will  and  pleasure  of  the 
person  that  governs;  that  the  king  b  abso- 
Fntely  despotic ;  that  he  may  change  and  alter 
the  hws  of  this  island  as  he  pleases ;  and  not 
only  he  himself  can  do  it,  but  that  he  has  de- 
legated that  power  to  his  substitute ;  that  he  ia 
sent  over  to  govern,  not  by  any  fixed  invariable 
pbn  of  laws,  but  such  as  he  thinks  proper  to 
make,  such  as  he  thinks  |>r<»per  to  prescril>e  to 
the  inhabitants,  at  any  time  that  in  his  wb- 
dnm  it  shall  appear  just  and  expedient  that  it 
should  be  so.  This  U  the  state  at'  an  English 
government,  and  this  is  the  construction  put 
upon  an  Enf>liiili  patent  that  passes  the  great 
seal  of  Great  liritain.  1  will  be  bold  to  say,  that 
if  that  construnion  is  ever  attempted  to  be  put,  it 
must  be  put  lepugnant  to  the  words  of  thai  pa- 
tent. I  will  be  bold  to  say,  that  if  a  patent 
passes  the  great  seal  contaiuing  such  wonb, 
there  b  not  so  feeble  a  judicature  in  this  king- 
dom tbit  wonld  not  dare  to  pronounce  it  void. 


151] 


14  GEOBGE  lU. 


Action Jor  Fake  Imfriiotmaxt— 


[158 


tnd  every  act  done  ooder  it  illegal.  Aud  I  will 
venture  to  say  too,  it  it  imponible  that  the 
ffreat  man  that  ihonid  dare  to  put  the  frreat  sea], 
and  proititute  public  authority  to  a  patent  of 
tbatkind,  but  he  muat  anawer  to  pulilic  justice 
with  his  head.— And  yet  thia  haa  been  con- 
tended to  be  the  true  genuine  oonatniction  of  an 
English  patent,  the  authority  under  which  thia 
same  general  M  oaty  n,  thia  governor  ofthe  island 
of  Minorca,  has  presumed  to  act.  Gentlemen, 
having  stated  bow  repugnant  it  is  to  every  idea 
aud  principle  of  law  and  justice,  it  gives  me 
concern  to  hear  in  what  habits,  possessed  with 
what  ideas,  men  raom  from  the  island  of 
Miuorca.'  It  has  been  contended  to  be  right, 
because  it  has  been  done  before.  If  it  has  lieen 
done  before,  I  say  it  ia  alarming,  and  it  ia  time 
to  put  an  end  to  it.  You  have  had  gentlemen 
with  military  commiaaions  appearing  here  in  red 
coata,  to  give  you  legislative  constructiona ;  to 
tell  you,  aa  lawyers,  what  ia  the  law  of  the 
ialand  of  Minorca.  You  have  had  a  gentleman 
who  aerved  aa  a  aecretary  to  governor  Mostyn, 
who  comes  home  and  tella  you,  that  the  go- 
vernor with  respect  to  the  administration  of 
laws  that  regard  only  questions  of  civil  pro- 

Krty,  is  limited  by  the  laws  of  the  country ; 
t  with  regard  to  criminal  jurisdiction,  hia 
power  is  uncircnmscribed,  and  totally  unli- 
mited ;  that  by  his  proclamation  he  can  change 
lawa  whenever  he  pleaaes,  and  the  law  of  to- 
night is  not  the  law  of  to-morrow,  if  that  man 
tbinka  proper  to  issue  his  proclamation  to  re- 
peal it ;  that  the  courta  of  juatice  are  under  a 
tyeto  respect  these  proclamations  as  laws ;  that 
the  individuals  of  the  island  are  all  to  be  bound 
by  it,  and  if  these  laws  are  issued  but  an  hour 
before,  they  are  as  Ending  as  if  of  long  standing 
in  the  island. 

These  are  the  ideas  of  law  that  theae  gentle- 
men bring  from  the  island  of  Minorca,  under 
the  government  either  of  this  general  Mostyn, 
or  hia  lieutenant-general ;  and  upon  the  autho- 
rity of  theae  gentlemen  that  have  furnished 
thennselves  with  snch  ideas  of  law  and  justice, 
yon  are  at  once  to  be  prevailed  upon  to  deter- 
mine that  the  lawa,  liberties,  and  privilegea  of 
this  kingdom  in  no  respect  extend  there.     It  is 
something  shocking  to  English  ears ;    a  des- 
potic, an  arbitrary,  an  unlimited  power !   (for 
even  the  words  nave  not  been    spared)  and 
yon  are  here,  aa  an  English  jury,  to  pro- 
nounce that  the  king  of  Great  Britain,  and 
peraons  acting   under   bim,  are    to  exerciae 
thia  unlimited  power  within  a  part  under  the 
jurisdiction  of  the  jndges  of  England.     If  this 
i»  offered  in  extenuation  of  the  conduct  of  ge- 
neral Mostyn,  added  to  the  strong  irresistii>le 
calls  of  justice  and  humanity  that  must  press 
your  minds  more  than  words  can,  there  must 
be  added  to  it  the  most  powerful  political  consi- 
derations ;  for  you  have  been  told  in  the  course 
of  thia  argument,  that  the  ialand  of  Minorca  ia 
an  insecure  poasession  to  the  crown  of  Great 
i'nuin ;    that  iu  inluONtanta  are  in  a  great 
neaiuro  disaffected.    If  they  are,  has  not  the 
«ftUM  of  the  disaffectaoo  beeo  very  esplkiUy 


set  forth  to  yon?  Is  not  the  care  as  evident  F 
Correct  these  gentlemeji,  who  think  that  their 
hands  are  not  bound  by  law  and  justice,  that  go 
over  to  exercise  power  over  these  helplesa 
men.  Teach  the  poor  Minorquins  that  tho 
English  Uw  will  protect  them ;  that  their 
governors  are  bound  by  law  and  justice  to 
teach  them  the  blessings  of  an  English  govern- 
ment ;  you'll  remove  disaffection ;  yoo'U 
get  a  stronger  guard  than  all  the  caution  and 
wisdom  of  governor  Mostyn,  his  secretary  and 
friends,  powerful  and  titked  as  they  are,  and 
Uiis  fatal  system  of  military  despotiHm ;  yoa 
will  have  the  island  to  serve  you,  you  will  have 
the  affections  of  the  inbabiunts  to  assist  yon, 
von  may  command  them  whenever  you  will. 
Vet,  gentlemen,  it  has  been  dwelt  upon  as  m 
topic,  that  this  island  is  disaffected  ;  that  their 
inclinationa  are  against  the  English  govern- 
ment. And  who  can  wonder  at  it,  if  what  Mr. 
Blakeney  says  he  is  clear  in  his  recollection  of? 
I  hope  he  is  not ;  I  don't  mean  to  deroeate  from 
his  veracity  ; — that  a  power  like  this  has  been 
used  of  arbitrarily  aending  a  man,  a  native,  an 
inhabitant,  from  the  island,  his  friends  living 
there,  his  possessiim  there,  for  no  offence  com- 
mitted, but  at  the  absolute  will  and  pleasure  of 
the  governor.  You  have  heard  a  great  deal  of 
Turkey,  you  have  heard  aomethin^  ofthe  laws 
of  Ja|)an,  you  have  heard  of  other  despotic 
powera,  whose  names  I  trust  are  sufficiently 
odious  in  the  eara  of  all  English  hesrera ;  and 
yet  you  are  told  that  the  governor  of  this  island 
IS  equally  despotic  with  any  of  these  fmwera; 
tliat  he  has  no  limits  but  his  will,  no  bonnda 
but  his  pleasure,  no  law  but  his  inclinationa  ; 
that  the  lives  and  persons,  if  not  the  properties, 
of  all  the  inhabitanta  of  this  isianti  lie  prootrato 
before  him,  and  they  must  depend  upon  bio 
natural  good  inclination  and  humaniijp  in  whal 
degree  they  are  permitted  to  eujuy  them. 

This  is  the  state  of  thia  island  ;  and  1  will  bo 
bold  to  aay,  it  would  be  apeaking  injirioiialy  of 
the  government  of  Japan, — it  would  be  upeak- 
ing  injuriously  of  the  government  of  Turkey,— 
it  would  be  s|ieaking  injuriously  ofthe  emperor 
of  Morocco's  government,  to  def^cribe  that  as 
the  general  state  of  these  subjects  ;  it  never 
waa  in  the  idea  of  even  despotism  itself  till  thio 
very  hour :  it  is  violence  aud  outruge,  it  ia  tho 
law  of  robbery  ;  it  never  obtained  in  any  placo 
where  the  idea  and  form  of  a  civil  go«ernmenft 
ever  was  allowed ;  because,  if  the  legislative 
power  and  the  executive  meet  in  one  person, 
that  distinguishes  a  despotic  government  from 
the  happy  state  that  we  enj(»y  in  this  kingdom. 
Our  king  can't  prescribe  us  laws,  but  he  most 
administer  us  justice  by  those  lawa  that  our  re- 
presentatives make  for  us.  That  ia  the  state 
of  this  country,  happily  distinguished  from  the 
state  of  despotic  countries,  fiut  in  no  despotic 
country  whatever  did  this  idea  ever  obtain,  that 
the  prince,  the  despotic  Sovereign,  call  him  by 
what  name  you  will,  was  to  adminiater  justice 
by  bis  incident  pleasure,  will  and  power.  If 
he  made  laws,  he  made  them,  proclaimed  and 
divolged  thomi  and  the  ralgeeli  were  govomed 


Fahrigtu  v.  Mailyn. 

iff  Hbcn,  lud  iheir  k'mgv  were  raled  by  tho«e 
kuc  But  lierp  thia  gentl email,  Mr.  Blftkeney. 
fra  Hide  licyunil  iii!i  cotiiuel,  (hi«  counsel 
««U  Mt  tuu  an;  thittg  like  this)  but  bc- 
oriyiiC  to  ihi«  |^ntl*:'in*u,  the  inlittiitaniH  or 
itB«t«Dd,  trithoul  llie  leut  imputation  of  ile- 
tutacy.  oilluiiit  any  mode  or  Ibrm  of  trinl, 
•tre WDHnced,  instantly  iraniparled,aDd  re- 
Hrad  from  itieit  frieiidi  «nd  rvlatiiiu*  for  crer, 
Mtoa  il  M  the  i^od  will  Da<l  plmsure  of  ilie 
fncTBor  ever  to  pfnnlithem  tortfiuni.  I  say, 
all  lk«  most  *liiinie>ul  auecdote  I  list  ever  was 
fcMd  •I'  a>>y  governnirnt  wbalever;  aad  a 
ImImw  sf  Egypt  would  merit  l lie  bow-Blrinfr 
fo  brtaf  lii«  m  so  illpgnl  siid  so  indecent  a 
www.  The  ttmo,  llie  ajificarsTice,  the 
II  ■Mail  rr  of  joltice,  are  all  nt  importance  tn 
btWarteil,  anil  nbich  ibe  policy  even  of  Ihe 
h*<aM  prescribe ;  jiet  have  our  ears  been  tor- 
Mrcd,  and  oar  palieoce  and  lime  been  spent 
viAdaetritm  of  this  sort,  lij  gentlemen  who 
W>  (»jay«il  IfUttxin  that  inland,  and  nhich 
hii«  eoMMMMly  been  exercised  by  tliem.  This 
■  ■feal  geaeral  Hoslya  has  bet  up  in  bU  de- 

lUa  wiajMy,  it  is  Raid,  makes  laws  whenever 

kc  fWasM  i  it  il  iq  bis  sole  will  and  power  to 

wpH  vbat  laws  be  pleases  upon  a  conquered 

DHtry.      It  is  mnre  than«Ter  I  beard.     Tim 

fm^Mne  |;q«s  I'unber  than  any  book,  ihal 

I'f  I  rv*d,  can  justify  me  in  allowioo' ;   be- 

'•,  as    I    bare  understooJ  ii,  if  true,  the 

.  ui^rst  aulhoritin  support   thpse   prerojpi- 

rt      One  Cliritlian  pnuce  conquer*  a  Cliris- 

kiflgilotn,  thai  is  ijntemeil  by  ii«  own  laws, 

■••  H  i*  ll>e  will  of  the  dnqueror  to  aliro- 

.   'd»M>   laws.     The   t'unqurst  of  Ihe  island 

'  Hmorva  «■«  not  msile  liy  qiieeo  Anne  per- 

'  '■Hj.  btil   it  was  made  by  ibe  aiih|ecls  of 

m  Briinin,  and  belonfci  to  ibe  supreme  xinie 

''irat  Britain.     Dili  if  yoii  ifive  the  jiower 

ilie  aofrreiiiii   It  mnlie  Ihoie  Iuhb,  allow 

umlaW   rivbtly  exercised.     Can  you  sup' 

|a>*U  tt  Ixrlonirs  to  the  ^vemor  8p|H)iuIed, 


tlrfbyai 


I  arbitrarily  and  iDcontmlnhly,  accord' 
■f  m  Ihair  own  wdl  and  {deasurer  For  in 
w«»  W  funnab  the  defemfnnt  Willi  any  colour- 
lM»4»l«BCv  whaUter,  be  ia  in  lie  juslilied  by 
tin*,  which  you  mutt  candemn  a*  pre- 
1  «f  nildier^  and  burelary,  equal  in  point 
la  either  nf  Ihaselerm*-,  or  jon 


I  ibe  constituijiin  uf 


IW  apffit,  tbr  rraina, 

InM  Bnlain.  Gut  wilh  the  idva  of  any  law 

seiner  ihai  ««cr  obtained   in  any  stale  ur 

•■HH:  both  tbene  you  muit  lubacnbe  In  l>e- 

cutnply  wilh  ihereciuMi  thai  ia 

lprauonnceaterdictfurcen.MDB- 

kn^— TIm  (rBtlemrn  then  baring  lakeo  Ibis 

JhHi  aa4  rcmai'c  line  of  delence,  whirh  Ibey 

^'"oslrt  ••nlil  ooQlaiu  and  embrace  any  de- 

-  ■  ikal  (bay  IbotiKbl  proper  to  ulfer  to  you, 

f  aaJU  proceed  witli  ihcii:  ilefeiice.    And, 


A.  D.  1775.  [154 

gentlemen,  you  are  laid,  that  ma  il  was  Ihe  au- 
thority, 10  It  wan  the  duly  of  Ihe  jj^neral  to 
proceed  ai  be  did ;  that  be  could  have  nu  {ler* 
aonal  inalei  utr'nce  to  a  man  so  remote  from  bia 
silualion,  go  unlikely  to  fall  in  wilb  Ilk  connec- 
tions ;  that  the  man  was  mulioous  io  the  wbula 
of  his  conduct ;  aud  that  al  last  he  commiiied 
that  duDfferouB  act  of  muliny  thai  made  it  an 
indispenEible  act  of  justice  in  llie  ^fuveroor  to 
commit  him,  and  to  tend  him  out  of  the  isk'nd ; 
that  if  be  bad  not  done  il,  and  a  consequence 
had  happened  fatal  (o  the  inland,  Ihe  gurernor 
would  hare  been  responsible  for  il.  Why, 
l^llemeu,  llie  slate  uf  il  so  mui'b  exceeded 
Ihe  fncts,  it  cetlainly  was  expected  by  the 
learned  counsel  wbu  offered  il  to  you  tbat  ba 
should   prove  somelhing   less,   and   therefore 


EroTcil  this,  (lioLig-h  I  should  conceiie  il  would 
y  no  means  bate  inlitled  Ibe  general  to  a  verdict, 
yet  Buch  conaideraliani, — an  act  of  absolute 
uecessily,  Ibe  aliernaiive  of  seeing  such  a  Irnst 
as  Ibe  island  of  Minorca  lost  lhrou([li  his  re- 
missness, or  Ibe  rvmnring  of  this  man  out  of 
the  island — I  should  bare  conceived  might 
very  well  have  furnished  an  excuse  for  him  in 
bis  conduct :  1  am  sure  il  would  hare  taken  ofT 
from  any  edge,  any  waimth,  or  keeaness  in 
which  an  action  would  bare  been  supported 
Ihal  iTould  have  been  brought  against  him. 
Bui,  large  as  Ibe  ground  was  laid,  il  was  to 
lake  in  certainly  aimibrr  case  than  this.  No- 
ibing,  as  I  conceive,  and  as  ]  submit  to  vou,  of 
Ibis  kind  has  been  proved.  Petitions,  lellers, 
mesBsges  hare  been  giren  in  evidence  before 
you,  and  commeols  are  made  upon  the  very 
petitions  themselves,  as  carrying  wilh  them 
slroiig  proofs  of  a  mutinous  inclination ;  and  at 
last  there  is  a  broad  fad  asserted,  that  there 
Has  a  downrieht  threat  of  Bp|iearing  in  arma 
al  Ihe  head  of  laO  men. 

Now,  genilemen,  ^ve  your  allcnlinn  lo  llwse 
lellers,  lo  ihese  petition]  that  bare  been  read. 
They  are  expressed,  as  i  conceire,  in  decant 
and  in  reipeclful  terms ;  and  if  il  is  an  act  of 
muliny,  I  do  conceive  that  il  is  impossible  fer 
any  one  man  In  complain  tbut  he  has  received 
wrong  from  anoiber,  either  hy  word  or  letler, 
but  be  muKi  be  i^andemned  as  a  mutineer  in  Iha 
island  of  Minorca;  and  the  public  faith,  the 
ualional  faiib  Ibal  is  pledged  lor  the  proleclion 
aud  enjoyment  uf  their  property,  is  reduced  to 
thai  slate — *  You  shall  enjoy  il,  but  if  another 
presumes  to  wrong  you,  you  musi  not  dare, 
upon  Ihe  pain  of  transportation  and  long  im- 
prisonmenl,  to  iiliiT  a  word  of  complaint ;  fur 
It  it  jii'lged  dangeroiu,  ilis  nut  coiisiiteDl  with 
ihe  wisilum  of  i;o«ernmeni  lo  permit  it.  and 
we  are  called  upon  lo  puiiisb  you  inosl  severe- 
ly.'— Gentlemen,  the  transaction  appeara  lo  ba 
ibi>:  that  anotbcer  in  Ibe  island  of  Minorca, 
called  a  muslaslaph,  was  ibe  man  frum  whoin 
ibe  isUnders  were  to  receive  what  ibey  call  tlia 
alToraliDn  or  the  asviie  price:  Ibis  was  iba 
couceplion  of  Mr.  Fubngas  the  pntiiioner. 
Another  notion  preraileil,  thai  tbe  order  «( 


155J 


14  GEORGE  III. 


Ad6iimfar  Ftdae  Imprisonment— 


[IM 


CAUDcil  reeeired  from  the  erown,  which  iM  cod- 
sisteDt  wilb  their  oapitultdoo  and  the  rights 
stipulated  to  them,  ought  to  be  obeerred ;  hj 
wbieb  order  tbey  were  at  liberty  to  lell  their 
wines  after  a  certain  price  bad  by  a  public 
officer  beoi  once  asHzed,  which  is  called  the 
afibratioo.    But  the  mostastaph  of  the  island 
thought  proper  to  say  that  the  order  of  council 
was  superseded  by  another  order,  which  com- 
ing from  the  active  person  in  the  go? emment, 
though  not  the  principal  at  the  time,  muit  ne- 
cessarily supersede  thai  order  of  eouocil ;  and 
it  was  insisted  upon  that  goremor  Johnston's 
order,  judging  of  the  inexpedience  and  impro- 
priety of  the  former,  must  take  place ;  and 
that  Mr.  Fabrigas  was  wrong  in  his  concep- 
tion of  what  ahonid  be  underBtood  to  be  the  law 
of  Minorca.     Upon  lus  presenting  his  com- 
plaint to  Mr.  Mostyn,  be  recei? ed  for  answer, 
that  Mr.  Mostvo  would  immediaiely  call  upon 
the  mustasta|iD  for  bis  answer.    The  snswer  is 
fi?en }  and  u  consequence  of  it  Mr.  Fabrigas 
m  told  that  his  petition  was  groundless,  for  that 
the  mostastaph  had  most  perfectly  satisfied  the 
governor.    Mr.  Fabrigas  then  desires  to  see, 
lor  confident  as    ho  was  that   he  was  well 
grounded  in  his  complaint,  yet  he  desires  to  see 
file  reasons  that  the  mustastaph  has  assigned. 
The  sight  of  these  reasons  is  denied  him.    In 
consequence  of  that,  he  presents  another  peti- 
tion; which  is,  1  think,  reforred  to  some  of  the 
law  officers  of  the  island  for  their  considera- 
tioB.    They  run  it  over,  and  tbey  report  them- 
•rires  satisfied ;  and  tbey  insert  the  answer  of 
the  mustastaph,  wbiob  answer  the  plaintiff  Mr. 
Fabrigas  is  very  desirous  of  seeing  and  answer- 
ing.   The  business  then  proceeds,  as  it  is  said, 
in  repeated  petitions;  Mr.  Fabrigas  conceiving 
that  the  governor  is  misled,  not  that  be  wilfully 
denies  him  justice,  but  is  misled  through  the 
influence  and  misrepresentation  of  this  musta- 
staph ;  and  that  produces  at  last  a  convention 
of  some  of  the  island,  in  order  to  take  their 
of  the  matter.     Here  it  is  not  clear  what 
the  sense  of  the  majority  ;  but  here  the 
mustastaph  had  weight  and  interest  enough  to 
get  that  represented  by  the  miyority,  which  he 
wished  to  have  received.   This  being  on  a  Sun- 
day, when  many  of  the  inhabitants  were  in  the 
eountry  following  their  diversions,  and  Mr. 
Fabrigas  thinking  that  the  sense  of  the  people 
had  not  been  properly  taken,  comes  again  to 
the  governor  with  another  petition,  not  censur- 
ing the  governor,  not  upbraiding  the  governor, 
not  intimatinff  the  least  uisapprobation  of  the  go- 
▼emor's  conduct,  or  jealousy  of  his  inclination, 
couched  in  terms  of  the  utmost  decency.    The 
consequence  of  it  was  an  answer,  which  pro- 
duced from  Mr.  Fabrigas  that  very  answer  upon 
which  the  defence  of  Mr.  Mostyn  has  been  in 
■0  great  a  measure  built ;  to  which  the  gentle- 
men have  applied  that  evidence  which  was  pro- 
duced by  Mr.  Wright,  Mr.  Mostyn's secretary. 
Mr.  Wright  says,  that  first  of  all  the  conver- 
sation was  interpreted  by  a  priest,  and  then  by 
another  interpreter ;  but  he  does  not  know  who 
iaierpretcd  tnosa  expresskms  whidr  fell  from 


Mr.  Fabrigas,  which  he  apprehended  to  be  of 
a  dangerous  kind,  and  therefore  discouraged^ 
and  advised  him  never  to  repeat  again.  He 
does  not  know,  he  says,  whetner  the  expres- 
sion was  to  this  purpose,  that  he  would  come 
again  if  permitted,  and  that  there  ahould  he 
another  petition  backed  with  150  men,  or 
that  he  would  come  with  150  men  to  back  hia 
petition.  1  am  sorry  for  it.  But  here  1  can't 
tbrbear  a  comment ;  it  would  be betrayingmy 
cause  and  my  own  judgment  if  I  did.  This 
gentleman  is  very  sure  that  one  or  the  other  of 
these  were  the  expressions.  He  professed  ie 
refresh  his  memory  by  a  paper  he  had  written 
down  within  an  hour  and  a  half  of  the  trans- 
action ;  and  he  thought  proper  to  add,  that  it 
gave  him  au  alarm,  as  if  something  dangerous 
might  follow. 

Mow,  gentlemen,  what  are  the  words  which 
he  has  written,  from  which  he  said  he  made 
his  communication  to  the  governor,  and  which 
certainly  contains  the  truth,  as  he  recenllj 
wrote  it  down  P  Why,  that  Mr.  Fabrigas  said 
he  would  come  next  day  with  a  petitwn  of  the 
people  concerned  in  grapes  and  wines,  which 
they  would  sign  and  come  with  to  the  number 
of  150!  These  are  the  words  wrote  down  bj 
Mr.  Wright  himself.  Why,  gentlemen,  I 
submit  it  to  you,  whether  in  common  sense  and 
plain  honest  interpretation  there  can  be  any 
mistake  about  these  words. 

You  hear,  gentlemen,  this  was  a  oootest  be- 
tween the  mustastaph  and  Mr.  Fabrigas.  The 
governor  is  appealed  to  as  a  judge  eipected  !• 
be,  and  who  ought  to  be,  impartial  between 
them :  be  was  appeale<l  to  with  decency  on 
one  side,  hut  leaned  rather  with  friendship  on 
the  other ;  for  the  interest  of  the  governor  ie 
not  unconnected  with  the  emoluments  of  the 
mustastaph.  On  one  side  it  is  insisted  that 
this  was  not  the  sense  of  the  majority  of  the 
inhabitants;  on  the  other  side,  uotwiihstaading 
what  had  appeared  from  the  advantage  taken 
upon  a  Sunday,  when  many  could  not  appear, 
yet  still  that  the  real  sense  of  the  majority  of 
the  inhabitants  was  on  the  side  of  Fabrigas. 
Gentlemen,  is  not  that  the  most  natural  key  ? 
does  not  that  furnish  the  most  obvious  inter- 
pretation to  this.^  lie  would  come  with  150» 
in  answer  to  what  he  had  been  told ;  for  his 
petition  bad  been  rejected  upon  the  ground 
that  it  was  not  consonant  to  the  wishes  of  the 
inhabitants,  for  tbey  bad  been  summoned,  had 
declared  and  signed  against  it.  He  answers, 
that  1  will  come  the  next  day  with  a  petition 
signed  by  150  men.  And  who  are  these  men 
to  be  F  Why,  he  says,  persons  concerned  in 
grapes  and  wine.  Can  you  conceive  tlien  thai 
he  threatened  to  bring  an  armed  force,  that  be 
threatened  danger  to  the  garrison  ?  Was  it  not 
a  natural  answer  in  that  dispute  that  then  sub- 
sisted between  him  and  the  mustastaph  ?  la  it 
not  clearly  explained  by  the  words,  *^  the  per* 
sons  concerned  in  grapes  and  wines/'  that  ha 
meant  the  mistake  should  be  rectified  the  next 
day,  and  that  it  might  appear  from  the  number 
attending  that  petilioDy  upon  which  side  the 


Fabtigas  V.  Maslifti. 

kUnden  ireK  ?  There  wai  no 
toniiuokeil,  ihttcnul'I 
U  impuMlUe.  TliitI 
Ui»l  an  luau  lliit  wrote  lliis 
afv»«ald  h«*c  given  llie  eridencelbU  Mr. 
pnfhl  lias  givea,  tutil  mv  lie  waa  ia  ilauU 
•il|Hlk»  tec<4l«elkia  of  ific  particular  wordu 
■«*«Tc  a«d,  whtMlier  he  irould  cnmi;  with  a 
puiivo  Inefced  with  150  men,  ortbat  he  nould 
eve  oilb  liO  men  taback  his  petition,  lam 
piindil  ibat  110  tnae  who  had  wrote  ihJE,  am) 
•iKk  be  trtta  vou  is  the  Irutli,  could  «(ei'  eii- 
IHua  (hat  kioiinf  doubt  that  Mr.  Wri|;ht  au^'- 
fMi4  In  yo».  I  am  as  conKdeDt  that  nn  man 
mM  hate  aiiirtaken  lliii.  that  had  not  some 
MMea  W  UMw«r  bv  alfectinc  to  mtiflake  it. 
W  what  waa  Mr.  W  iiglit'i,  what  was  ihe  t.»i- 
IKWr'a  cooditct  upon  tbia  accuioof  Uid 
tMarur  llirni  enijuire  bIW  iheae  MO  men? 
V  lUi  waa  a  matter  that  would  gire  Kueli  uo 
imm  to  a  (pTcmnr  of  a  ffarrison,  wsh  it  jiro- 

Eta  acq«i«*cc  in  (be  remmsl  of  one  only  t 
•  thtra  any  enquiry  made  alter  the  others  ? 
If  it  Mrack  Hr.  \VTi|>hl  a«  danKerouf.  would 
fetal  bare  orcurrrd  to  him,  lo  tlOfi  Mr.  Fab. 
npaapaa  ibeiDManli'  Would  he  not  have de- 
mmM  iba  aMnei  nf  tbene  150  men?  Bat 
■r.  Haalya  at  ancc  abnndoM  all  his  irbaracter, 
kiba  furiHMe  of  Ilie  cauie;  he  is  noir  do 
haier  iha«  raithtnl  officer,  that  good  and  trusty 
MM',  (tiairidiffeiitHiid  circiimsueel  governor, 
te  jm,  ware  Wore  lold  he  was.  Is  it  not 
^•hUo  hoi  it  ihould  hnfe  ocourred  to  both, 
teAre  pnrpn-  coodiiL-t  naa.  if  iliis  was  sjuat 
^MfretaUoa  ordie  word!  that  oere u tiered,  lo 
1' that  man  U|i  P  not  to  atop  there,  but  lo 
>>ttoB4TaKBt»l  him.  I"  discover  his  nbetlora 
■1'  «Kam|>T>ce«,  to  nurtue  the  eoquirT,  aud 
;'^«  the  aatirty  oIlhcifarriBan.  wbicti  (hey 
■rm^^  10  tie  ao  iniicb  in  danger  ?  It  is  mac( 
•*M  fta*  all  the  rjrcamataiices,  thai  neither 
■'  dm  appfebended  any  danger  whitioerer 
■  Atfimaon;  Ihey  «li^[it  in  quiet  as  before, 
flaa  aaaM  he  tome  other  reason  I'or  their  pro- 
ta  the  uiauner  iliey  hare  done  against 
beaides  ibat  which  arises  from 
and  emcrgancy  which  naa  re- 
ynu,  or  the  isterposllion  that  the 
i'lraai  waa  called  il|>nn  by  iiidispensible  doty 
aaha,  br  the  nice  of  {ircsening;  the  i;ar- 
tliniwB  into  coDfuBJon,  from 
nnny's  bands.  There  must 
k,  I  aaj',  BOBia  oilier  rraiioii  lor  acting  in  (hit 
Mr.  Cabrii^a.  Mr.  Fabrigas 
tJiny  would  hnre  it,  of  a  dan- 
^  .  that  a  dangeroiia  design  was 
ataMl  J**  t>*  <*  tlie  nnlv  man  dial  I'or  aix 
fcj»  rwlai  in  the  istatid  in  close  imnrison- 
■M,  attd  thcR  ia  not  any  inquiry  made  after 
k  pnvMaa  pteanmed  ID  be  ooncemed  with 
ha  m  the  liuaiora*.  Ifilic  governor  had  coo- 
■BM4  that  ii»pn>aiiion,  and  withnl  lo  beset 
^Ib  M  kia  Hiiiniiin,  ibe  ammranee  of  the  pe- 
(^  iha  i>c«i  day  wmild  hate  anawerrd  it. 
*k«  (aor  poor  Minur(|aia<,  (wbirb  liir  some 

"'  Mber  are  drucrilied  to  be  of  the 

JttPf  and   which    yuu    will 


A. D.  177S.  [I5» 

therefore  presume  to  be  the  moil  inoflensire) 
wbeo  Ihese  four  men  iilooe  came  with  the  |ie- 
tilion,  did  governor  Moslyo  then  eontiooe  in 
the  o|Hniua  that  this  man  waa  the  frainer  and 
cnnlriTcr  of  dangerous  desigiw,  to  he  backed 
»nd  RUpiwrled  by  multitudes  f  Must  not  he 
change  iiis  ofiininn  (ben  i*  Did  the  imprison- 
ment end  thenf  Were  the  sufferini(s  of  ibis 
man  then  put  an  end  loF — No,  gentlemen; 
ihe  man  conlioues  in  prison  for  aiic  day*,  and 
is  arterwardi  by  sn  order  exira-judicial,  by  an 
order  of  (his  goTeroor  Mostyn,  8eD(  iolo  exile ; 
which  if  it  it  law,  any  thing  he  thinks  proper 
to  do  will  be  law  }  and  1  must  then  agree  with 
Mr.  Wright's  juridical  opinion,  thai  ibe  power 
of  the  goTemor  can  have  no  bounds  in  enmioa) 
mailers.  If  be  can  justify  this,  be  might  as 
well  justify  capital  nunishmenla ;  nnd  if  ne  had 
thought  projier  to  hn«e  ordered  hiui  lo  imme- 
diate exeeufiun,  he  wmild  bare  done  an  act  lull 
as  justifiable,  in  my  opinion  aometbing  mora 
agreeable  to  bumanily;  for  he  sends  (bis  man 
to  rot  in  a  dungeon,  Ibe  place  ordained  for  tba 
vilest  and  mosl  desperate malef actors,  for  ca- 
piral  oflrndera  only,  whether  under  ground  or 
not  is  immaterial,  but  it  was  gluomy,  damp, 
and  uncomfortable  ;  it  has  all  the  horrors  of 
a  duni^eon  belonging  to  i( ;  and  there  (his  man 
ia  kept  under  n  special  eilrnordinary  order, 
irhich  our  witneBses,  who  were  soldiers  of  Ihe 
garrison,  who  were  attendants  at  tbe  place,  tell 
vou,  were  unprecedented  }  no  food  lulTered  to 
be  admlnislered  to  him,  his  friends  debarred 
from  seeing  him,  his  wife  and  children  denied 
aCL'Mtias  often  as  they  apfitoscbed,  and  thia 
ID  consequence  of  ordeis  which  (heir  bnmanily 
shuddered  a(,  but  which  (hey  dared  not  pre- 
sume lo  contradict.  Singular  and  unexampled 
as  was  this  cruelly  even  in  the  government  of 
Minorca,  which  nas  the  peculiar  characier  of 
having  a  despotism  brloiigiiig  to  it  unknown  in 
any  other  place  upon  the  face  of  Ibis  globe; 
yet  even  itiere,  though  (hey  may  quote  in- 
stances  to  justify  some  part  of  their  beha- 
viour, they  never  can  pretend  that  a  man 
ever  was  treated  with  the  studied  cireuiu- 
slances  of  rigour  and  crnehy  cnnlaioed  in 
these  orders:  I  mean,  tbai  no  such  orders 
ever  issued  out  before.  This,  gentleme 
Ihe  lrea(men(  Mr.  Pabri^asbas  undergone 
this  Mr,  Mofityn  must  justify.  He  mtiat  not 
only  justify  (be  removing  this  genlteman  on 
of  ibe  way  of  doing  mischief,  but  he  mm 
say,  that  without  hearing,  without  any  iir« 
ceeding,  withaD(  (he  form  of  sentence,  with 
nut  even  so  much  as  an  inlimslioo  of  the 
oSence  with  which  he  is  charged,  he  has  ( 
right  (0  inllic(  tbe  greatest  of  all  punlsbmenta 
upon  him.  Tbis  Mr.  Mostyn  must  say  :  and 
you  are  to  conclude,  from  the  eiceediiig  good 
character  of  Mr.  Mostyn,  that  all  ibis  pro- 
ceeded from  tbe  pure  benevolence  of  bis  heart, 
from  (he  mas(  upright  and  commendable  of 
all  motives.  Yuuarcinyiurjndgmentto  pasa 
nn  approbation  of  denying  a  man,  untried  and 
unconvicted,  all  food  for  six  day*  but  biead  and 
water,  of  atrrppinij  him  of  all  comfort,  nod  of 


159] 


14  GEOBGE  III. 


Actimjbt  False  Imprttonment— 


[160 


^Kofvag  bim  eren  the  accommodatioo  of «  bed. 
Yoa  must  pronounce  ibAt  there  was  nothing 
improper,  nothing  unlawful,  nothing  inlvuman 
ID  leparatiug  a  man  from  bia  wife  during  this 
imprisonment,  stripping  htm  of  the  comfort 
of  bis  infant  children,  and  then  transporting 
bim  into  a  foreign  country,  without  ipving  bim 
Ihe  opportunity  of  providing  for  his  voyage, 
or  receiving  that  small  assistance  which  jrou 
have  been  told  bis  wife  and  son  were  ready  on 
the  spot  to  deliver  to  him.  This  you  must 
pronounce  to  be  legal  and  justifiable,  and  to  be 
agreeable  to  humanity,  to  be  necessarily  inci- 
dent to  the  office  and  duty  of  a  governor  of  a 
garrison.  You  are  desired,  admitting  for  a 
moment  that  you  can't  justify  the  general  in 
this  conduct;  admitting  that  some  form  of 
triftl,  that  calling  a  man  to  answer  and  signify - 
iog  what  he  was  charged  with  were  neces- 
lutry  forms  to  precede  the  infliction  of  any 
punishment  whatever ;  (which  admission  will 
be  an  affront  to  the  judgment  of  the  worthy 
gentleman  his  secretary,  who  insists  upou  the 
general's  will  being  the  law)  but  laying  that 
aside  for  a  moment,  it  is  said  the  governor's 
conduct  stands  so  circumstanced,  that  it  is  so 
mitigated,  that  you  can  never  find  it  consistent 
with  your  duty  to  give  any  considerable  da- 
mages against  him,  at  the  complaint  of  this 
man.  And  to  brand  him  with  the  most  danger- 
ous of  all  names,  you  are  told  that  he  is  a  pa- 
triot :  that  patriotism,  however  it  may  be  in- 
troduced here,  and  may  be  serviceable  in  a 
commercial  country,  is  of  no  use  and  benefit, 
but  of  the  highest  danger,  in  the  island  of 
Minorca ;  and  the  love  of  a  man's  country, 
which  is  called  the  first  of  virtues  in  other 
countries,  becomes  a  mark,  a  dangerous  offence 
in  that  country.  At  the  instance  therefore  of 
such  a  man  as  that,  and  against  such  a  man 
as  Mr.  Mostyn,  you  are  told,  you  can  give  no 
damages,  for  the  great  and  the  long  imprison- 
ment, for  the  cruel  and  afflicting  injury  done 
him,  in  sending  him  into  a  foreign  country 
from  his  wife  and  family.  You  cannot  do  it, 
because  it  is  said  Mr.  Mostyn  has  been  in  an 
error,  and  that  the  utmost  extent  of  Mr.  Mos- 
tyn's  crimes  amounts  only  to  that  of  error. 
To  support  this,  the  opinion  of  the  military 
was  asked,  and  the  opinion  of  those  wretched 
men  called  lawyers,  who  have  studied  law  in  a 
country  where  law  is  not  permitted  to  reside,  and 
where  the  will  of  the  governor  is  the  only  law. 
Upon  such  authorities  it  is  said  Mr.  Mostyn 
could  not  hesitate.  Clear  as  his  judgment  is, 
be  is  mistaken ;  he  is  misled  by  the  first  of 
authorities:  he  certainly  meant  well.  Gentle- 
men, if  5Ir.  Mostyn  had  offended  against  any 
C'cular  positive  law  of  this  country  or  even 
irca,  though  clear  to  common  understand- 
ings, ]^et  that  defence  mi^ht  be  open  to  him  ; 
but  it  is  not  open  to  him  m  this  case  :  for  he 
has  offended  against  the  law  of  humanity, 
impresaed  upon  every  good  mind  (no  man 
that  feels  it  can  ever  te  mistaken),  and  he  has 
offended  against  the  first  principles  of  justice. 
But  it  is  said,  he  only  erred  in  sending  a  man 


to  a  dungeon,  that  probably  might  kill  htos  ; 
out  of  error  too,  ^e  issues  out  orders  to  restrict 
him  to  bread  and  water  for  bis  sustenance ;  out 
of  error  too,  he  prohibited  the  access  of  hia 
wife  and  children  ;  out  of  error,  he  banishad 
him  into  a  foreign  country,  stript  of  his  pro- 
perty, and  all  the  comfort  ne  could  besupposed 
to  have  in  his  banishment,  not  suffered  to  take 
that  small  provision  wliieh  his  family  had 
made  for  him;  all  these  errors  are  incident 
— To  whom  r  To  the  governor  of  Minorca.  I 
trust  by  your  verdict  that  you  will  never  sufiar 
a  man  who  has  acted  this  part,  to  call  it  bo** 
manity,  and  go  back  to  Minorca  justified  bj 
your  verdict,  in  saying,  '  I  committed  theaa 
mistakes,  but  they  were  all  mistakes  of  tbo 
heart'  I  am  sure  you  will  not  give  him  the 
sanction  and  autbonty  of  your  verdict.  But 
if  these  argimients  prevail,  you  must  do  it ; 
you  must  give  the  plaintiff  small  damaffetp 
merely  because  the  defendant  is  mistafcca* 
Governor  Mostyn,  bred  too  in  England,  lately 
gone  over  to  that  coimtry,  does  not  reeoUeci 
that  it  is  necessary  that  a  man,  before  be  la 
punished,  must  be  tried:  you  are  to  call  that 
an  error  too.  I  do  conceive,  the  lowest  wretoii 
that  walks  the  streets  of  London,  is  incapable 
of  falling  into  that  error :  it  most  be  an  error 
produced  by  the  place ;  it  must  be  that  veiY 
intoxication  and  ornnkennesa  of  power  whica 
you  ought,  by  your  verdict,  to  correct.  1 1  is  in-  • 
possible  that  any  Englishman,  or  any  dmui  biei 
in  a  civilized  country,  could  fall  into  such  an 
error.  And  give  me  leave  here  to  remark  on 
one  part  of  the  case.  Gentlemen  are  brooght  to 
tell  you  of  reports  conveyed  to  the  goyemor. 
If  Mr.  Wright  reported  faithfully  what  be  was 
authorized  to  report,  the  governor  had  little'la 
build  upon.  Another  gentleman  adds,  that 
there  was  a  report  of  somebody ;  and  it  is  aaid 
it  may  justifjr  the  governor  as  a  report.  Near 
did  they  consider  now  the  governor  is  to  hn 
justified  by  a  report?  Does  a  report  justify  a 
man  in  proceeding  to  the  very  extremity  of 
punbhment  instantly,  without  trial  or  exami- 
nation F  Does  not  every  observation  that  can 
possibly  be  made  turn  against  general  Mostya  ^ 
If  you  pronounce  a  verdict  for  him,  roust  net 
you  give  a  sanction  to  tbst  horrible  and  danger- 
ous doctrine  here  advanced  in  his  support  f 
Are  not  you  called  upon  then  by  every  consi-' 
deration  that  is  dear  to  you,  to  give  great  and 
exemplary  damages  in  tliis  cause  ?  If  ever  ez- 
aniple  required  it,  it  does  in  this.  If  ever  the 
suffering  of  a  roan  required  it,  it  does  in  tbia  ; 
for  never  was  any  man  more  clearly  and  on- 
justifiably  wronged  and  injured.  II  yon  send  • 
Mr.  Fabrigas,  if  he  has  courage  to  return  tft 
the  island,  with  a  verdict  of  a  few  hundred 
pounds,  to  give  triumph  to  a  man  whose  re- 
venue is  seven  or  eight  thousand  pounds  a-year» 
who  does  not  regard  what  such  a  man  as  tbia 
recovers ;  then  the  despicable  doctrine  of  ar« 
bitrary  power  that  the  governor  was  ko  fond  of,' 
and  thought  so  well  established  in  this  ialand|* 
will  never  again  be  disturbed.  Is  it  not  ea^- 
sential  to  the  ycry  safety  of  the  islandy  thai . 


mi 


Fabrtgas  xh  Mostytu 


A.  D.  177S. 


[162 


the  inbaliitaiits  may  be  asiured  that  tbey  are 
pntecied  from  aocb  a  power,  that  tbey  shall 
■ever  be  told  that  io  a  court  of  justice  such  a 
|e*er  was  ever  insisted  upon,  and  that  the 
ivy^ve  only  a  few  hundred  |K>andsdaniaf2^, 
MI  mark  that  they  did  uot  bear  in  their  minds 
my  great  disapprobation  of  it  ? 

bo  the  other  hand,  it  is  of  no  great  coiise- 
fMQce  whether  Mr.  Mostyn  ever  returns  to 
llat  country  again.  It  is  my,  and  I  am  sure 
it  is  \  our  wiah»  that  be  may  never  be  permitted 
Is  rtiuni.  1  wish  he  may  never  see  the  face 
sf  Mr.  Fabri^as  af^ain.  1  wish  he  may  never 
Me  the  face  of  Mr.  Fabrigas  a^ain  m  that 
iiUnd.  But  it  is  of  the  greatest  concern  to  the 
peace  and  happiness  of  that  island,  that  they 
aic  nfely  protected  from  such  outrages,  from 
faeh  raropaat  violence  and  capricious  exercise 
■f  tyranny  and  despotism ;  that  they  shall 
■crer  be  disturbed  again  by  such  exertion  of 
■Qtborilv,  much  less  that  it  shall  ever  be  ac- 
faswlcfujied  as  the  claim  of  the  governor  of  the 
Uand  ;  but  that  they  may  quietly  enjo^  those 
rights  that  as  natural-born  subjects  ot  Great 
Britun  they  are  entitled  to,  and  which  the  na- 
lisaal  fi^th  is  pledged  to  make  good  to  them. 
This  will  be  the  advantage  that  will  follow  the 
giving  ample,  considerable,  and  exemplary 
bmgCB  to  the  plaintiff;  damages  that  1  must 
laj  in  this  cause  are  called  for  from  the  very 
astare  of  the  cause  itself:  for  if  there  was  not 
any  weightier  consideration  in  it  than  for  the 
nferinn  of  the  man,  the  damages  most  swell 
high  indeed  ;  but,  added  to  that,  you  will  pro- 
dsee  this  faappy  effect,  that  Minorca,  which  is 
■iilo  be  a  precarious  possession,  will  for  ever 
he  a  permanent  and  secure  possession  to  the 
~  of  Great  Britain.  I  much  fear,  if  this 
receives  countenance,  it  will  be  inse- 
isdeed  ;  and  much  as  I  love  the  trade  and 
of  this  kingdom,  I  protest  as  a  man 
tf  ftding,  great  and  valuable  as  they  are,  1 
vsnld  not  consent  that  they  should  be  pur- 
chased, I  cannot  consent  that  they  should  be 
puKTved,  at  the  expence  of  the  most  solemn 
i%hls  of  societv. 

Mr.  Jdlit.  dfould.  Gentlemen  of  the  jury, 
Anthony  Fabrigas  is  plaintiff,  and  John  Mos- 
lem, esq.  is  the  defendant.  This,  gentlemen, 
is  an  action  of  trespass  and  false  imprisonment, 
en  which  the  plaintiff  declares  in  two  counts. 

The  first  is,  that  the  defendant  upon  such  a 
day  made  an  assault  upon  ami  imprisoned  the 
plaintiff,  without  any  reasonable  or  probable 
eaase,  against  the  laws  of  this  kingdom,  and 
csmpelled  him  to  depart  from  Minorca,  where 
ht  was  theredwellingand  resident ;  and  carried 
•r  caused  him  to  be  carried  from  thence  to  Car- 
Ika^ena,  in  the  dominions  of  the  kine  of  8|min, 
aga-Dst  the  plaintiff ^s  will,  whereby  ne  was  put 
to  great  expence  and  trouble,  his  goods  were 
Vtoled  and  lost,  his  family  brouj^nt  to  {;reat 
vaaiand  distress,  and  he  was  depnved  of  their 
vmiort.  That  is  the  first  count.  The  second 
a,  the  general  cbarffe  of  false  imprisonment, 
»uhout  alledging  tnese  circumstances.  To 
dn  the  defendant  has  pleaded  two  pleas. 

VtiL.  XX. 


In  the  first  place,  the  general  issue,  that  he 
is  not  {Jfuilty. 

la  the  second  place,  he  says,  he  is  governor 
of  the  island  of  Minorca,  afii)  that  he  was  in- 
trusted with  ali  the  powers,  privileges,  and  au- 
thorises, civil  and  military,  bflonginaf  and  re- 
latint;  to  the  government  of  the  baiH  island  in 
parts  lieyond  the  seas.  Then  he  states,  that  ilie 
plaintiff  was  ffuilty  of  a  riot  and  disturbance  of 
the  peace,  order,  and  government  of  the  islnud, 
and  was  endeavouring  to  create  and  mifn  a 
mutiny  and  sedition  amongst  the  inhubitants  of 
the  said  islaml,  in  breach  of  tlieueare,  in  viola- 
tion of  the  laws,  and  ia  subversion  of  all  order 
and  government ;  whereupon  tlie  dc-fendant,  in 
order  to  preserve  the  pence  and  government  of 
the  island,  was  obliged,  and  did  then  ajid  there 
order  the  plaintiff  to  be  banished  the  said  island, 
and  to  leave  and  quit  the  island.  And  in  order 
to  carry  (his  into  execution,  and  to  send  him 
from  and  out  of  the  island,  he  did  (then  come 
the  words  of  form)  gently  lay  hands  upon  him 
for  that  purpose;  and  accordingly  did  cause 
him  to  be  kept  in  prison  for  a  reasonable  siiace 
of  time,  until  he  could  send  him  out  of  the 
island  ;  and  then  at  length  he  did  send  him  on 
board  a  vessel  from  the  said  island  to  Cartha- 
gena  in  Spain,  as  it  was  lawful  for  him  to  do. 

The  plaintiff  has  said  in  answer  to  this,  that 
he  did  it  of  his  own  wrontr,  and  without  any  such 
cause  as  he  has  alledged  in'  his  justification. 
Now  whether  this  justification  is  good  in  lunnt 
of  law  or  not,  is  a  matter,  gentlemen,  that  £ 
shall  not  enter  into  upon  this  occasion.  For  it 
seems  to  me,  that  if  what  has  been  laid  down 
by  the  gentlemen  upon  the  part  of  the  defen- 
dant is  well  founded  m  law,  tbey  ought  to  have 
pleaded  that  matter  to  the  justification  of  the 
court.  But  they  have  not  so  done,  but  have 
pleaded  a  justification,  which  is  denied  by  the 
plaintiff;  and  that  issue  coming  here  by  the 
king's  commission  of  Nisi  Prius  to  be  tried  by 
you  and  Itefore  me,  we  must  therefore  ^ee 
whether  he  has  made  out  that  justification  or 
not.  And  you  will  please  to  recollect  he  says 
in  it,  that  the  plaintiff  was  guilty  of  a  riot  and 
disorder,  and  did  endeavour  to  excite  and  stir 
up  mutiny  and  so  forth  in  the  island.  Thus 
much  I  think  one  may  say,  that  where  a  con- 
quest is  made  of  a  Christian  country  (there  ia 
some  strange  doctrine  relative  to  infidel  coun- 
tries, as  if  mfidels  had  no  laws  to  be  governed 
by,  that  I  meddle  not  with;  but  as  far  as  re- 
lates to  the  conquest  of  a  Christian  couuiry,) 
certainly  it  is  said,  that  until  the  crown  does 
promulge  laws  among  them,  they  are  to  be 
governed  by  their  ancient  laws.  ludeeil,  com- 
mon sense  speaks  it,  because  otherwise  they 
would  have  no  laws  nor  government  among 
them.  However,  thus  far  may  be  said,  to  be 
sure,  under  such  a  constitution  in  which  we 
live,  that  at  least  natural  equity  must  lie  the 
rule,  if  there  is  a  |M)wer  that  is  not  circum- 
scribed by  clear,  positive,  and  precise  rules. 
Yet  both  natural  justice  and  equity  are  the 

frinciples  that  ought  to  Gfnvern  sucli  a  trust, 
f  any  one  was  to  write  or  speak  upon  it,  it  is 
31 


163] 


U  GEORGE  HI. 


Action  for  False  Impruonment-^ 


[164 


impossible  bat  they  must  lay  down  that  propo- 
sition. Then  that  will  be  a  consideration  for 
you  to  try  upon  this  occasion  ;  consideriofi^  this 
distiDction,  that  we  are  not  trying  a  cause  now 
that  does  happen  within  the  compass  of  this 
island,  but  we  are  trying  a  fact  and  a  proceed- 
ing that  happened  in  a  garrison  beyond  the 
•eas,  a  place  possessed  by  the  crown  of 
Great  BriUin  for  the  general  benefit  of  this 
country  and  of  its  commerce. 

In  order  to  make  out  the  plaintiff's  case,  in 
the  first  place  they  hate  called  Basil  Cunning- 
bam,  who  was  Serjeant- major  in  the  soyal 
artillery  at  Minorca  in  1771.  He  says,  that 
the  plamtiff  was  there  at  that  time  (it  is  aj^reed 
upon  all  hands  that  he  is  a  natire  of  the  island 
ef  Minoroa.)  When  the  plaintiff  was  brought 
into  prison,  an  order  was  giren  out  to  put  three 
additional  men  upon  the  £[uard  to  do  duty  o? er 
the  prisoner  Fabrigas  :  this  was  S4  hours  afler 
be  had  been  in  custody.  The  prison  was  called 
N*  1,  and  is  a  prison  where  those  charged 
with  or  guilty  of  capital  crimes  or  desertion  are 
general^  put.  fle  was  brought  there  by  a 
part^  of  soldiers,  and  the  witness  thinks  hand- 
cufied.  It  was  afterwards  admitted  that  he 
was.  He  was  confined  there  four  or  fi?e  days. 
The  centioels  informed  the  witness,  that  they 
had  orders  that  be  should  bare  no  conversation 
with  any  but  the  prevost-marshal,  and  that  was 
put  into  the  general  orders :  in  fact,  that  no  one 
did  Tisit  him,  as  he  knew  of.  The  provost- 
marshal  has  the  custody  of  persons  accused  of 
capital  crimes,  and  keeps  the  key  of  the  prison. 
He  says,  that  the  plaintiff  lived  like  a  gentle- 
man in  the  island.  He  says  that  he  the  wit- 
ness was  at  SL  Phillip's,  and  that  the  plaintiff 
was  not  tried  for  any  crime.  This  witness  is 
cross-examined,  and  says  he  has  seen  the 
plaintiff  at  different  times  for  eight  or  nine 
years :  he  never  heard  but  that  be  was  a  quiet 
inoffensive  subject:  the  plaintiff  lived  in  St. 
Phillip's,  and  was  imprisoned  in  St.  Phillip's 
castle.  This  witness  was  there  before  Mr. 
Mostyn  became  the  goTernor:  Mr.  Johnston 
was  the  governor  when  the  witness  came  first 
to  that  island. 

James  Tweedy.— He  was  a  corporal  in  the 
toyal  artillery  in  1771,  and  was  seijeant  of  the 
guard ;  and  in  the  middle  of  September  the 
plaintiff  was  delivereil  a  prisoner  by  the  soldiers 
of  the  61st  regiment.  He  says  he  was  in  prison 
in  N*  1 ;  that  there  were  orders  from  the  ad- 
jutant-lieutenant not  to  let  any  one  converse 
with  him;  he  heard  the  adjutant  read  it :  the 
adjutant's  duty  is  to  deliver  the  orders  of  the 
commander  iji^chief.  To  relieve  us  from  any 
farther  examination  relative  to  that,  it  was  ad- 
mitted by  my  brother  Davv  that  it  was  done 
by  the  defendant's  order,  'fhen  a  book  is  pro- 
duced to  you,  and  the  title  of  it  is,  <*  Orders 
delivered  to  the  troop\i  in  Minorca  for  the  year 
t771."  '•  Sept.  15,  1771.  In  order  to  relieve 
the  main  guanl  at  St.  Phillip's,  which  now 
mounts  a  centinel  extraordinary  upon  Anthony 
fubrigas,  confined  in  prison  N**  1,  general  • 
Mostyn  orders,  that  three  men  be  added  to  the  I 


artillery-guard  in  the  Castle -souare,  as  they 
are  most  contiguous,  and  that  duty  taken  by 
them.  The  centinel  must  he  post^  night  and 
day,  and  is  to  suffer  no  person  whatever  to  ap« 
proach  the  grate  in  the  door  of  the  said  prison^ 
either  to  look  in  or  have  any  communication 
with  the  prisoner,  the  provost-marshal  ex- 
cepted, who  is  constantly  to  keep  the  key  in 
hb  possession."  Then  the  witness  goe%  on, 
and  says  the  plaintiff's  wife  and  two  children 
applied  to  see  the  plaintiff;  that  they  were  not 
permitted  to  come  nearer  than  30  yards  of  the 

C risen ;  that  the  plaintiff  lay  upon  boards ;  he 
ad  no  bed :  his  wife  brought  bedding,  but  was 
not  permitted  to  carry  it  to  him.    He  says  the 

Sard  was  sure  to  be  troubled  if  they  bad  suf- 
ed  any  one  to  come  to  him,  if  they  had  been 
guilty  of  a  breach  of  the  order.  lie  subsisted 
upon  bread  and  water :  that  when  persons  are 
confined  for  capital  offences,  they  have  the 
provisions  of  the  island,  bread  and  lieef,  bron^bt 
them.  He  savs  that  no  oue  attempted  Co  bnng 
any  to  the  plaintiff,  because  the  onler  was  so 
strict  There  was  an  air-  hole  at  the  top  of  the 
prison  ;  a  centinel  was  placed  to  keep  any  per- 
son from  approaching  it ;  and  says  that  was 
not  done  in  any  instance  before,  even  of  de- 
serters. He  says  the  plaintiff  bad  a  wife  and 
five  children.  He  never  heard  him  speak  dis- 
respectfully of  the  governor,  only  he  complained 
whilst  in  prison  of  his  sufferings. 

William  Johns  was  garrison-gunner  at  Mi* 
norca  in  177 1.  He  had  been  there  nine  vean. 
He  knew  the  plaintiff,  who  lived  genteelly,  ai 
much  so  as  any  one  in  St.  Phillip's.  He  says 
the  plaiutiff  was  brought  to  prison  by  a  file  of 
men.  Then  he  was  flying  on  about  hand* 
cuffing,  and  so  on,  which  the  defendant's  comi* 
sel  admitted,  as  described  by  the  last  witness  ; 
but  he  was  not  kept  hand-cuffed  in  prison.  Rft 
says  the  prison  is  a  ground -floor,  and  is  ael 
apart  for  capital  offenders.  The  first  day  he 
was  in  prison,  his  son,  a  lad  of  fifteen,  came  to 
see  him,  and  had  provisions  in  a  basket.  He 
desired  the  men  upon  duty  to  let  him  carry 
them  to  his  father,  and  they  refused  htm. 
You  see,  gentlemen,  it  is  owing  to  those  strict 
orders,  that  no  man  was  to  have  access  to 
him. 

John  Craig  is  a  matross.  He  says  he  wtt 
at  Minorca  in  1771.  He  had  lieeo  there  nino 
years.  He  knew  the  plaintiff  to  be  in  very 
good  circumstances ;  that  is,  he  was  so  reck* 
oned  by  people  in  the  island.  This  witness 
says,  that  he  did  duty  upon  him  when  he  wac 
in  prison,  and  none  were  admitted  to  see  him : 
that  his  wife  and  child  were  refused.  Ho 
says,  that  after  five  or  six  days  coiifinement, 
the  witness  was  at  the  quay,  and  saw  him  piil 
on  hoard  a  vessel  that  was  under  sail.  Ho 
says,  this  was  done  between  three  and  four  id 
the  morning.  He  says  his  wife  and  child 
came  down  then  to  speak  to  him,  but  the  ceo- 
tioel  would  not  let  them  come  near  him,  nor 
let  the  witness  speak  to  him,  though  he  wanted 
bu  to  do.  Then  it  is  admitted  that  he  was  ba- 
liibhed,  hy  Mr.  Mostyn'a  order,  to  ft^paia  foe 


Vahigm  v.  Mosiyn. 

^mSySTh*  Odlerml  him  to  be  taodeil  ol  Car- 
&•(■»«,  knil  it  w«<:  SI)  duDp. 

Cflloncl  James  Bi<lu]|ili  «ay»,  lie  has  licrn  al 
MiMrokt  that  he  knew  (lie  plaintiff  in  ,lune 
lltt.  He  ■laid  there,  I  llimk,  lill  the  year 
ini.  He  Myi  the  iiUitiliS'  appetnil  tu  him 
IS  mK  of  the  nhal  he  call)  the  aecoml  tori  of 
fafle:  be  was  reputed  to  hare  some  houses 
W  lincyutls;    he  had  ■  falher  Uring.     He 

Xlh«t  Ite  nas  oot  receired  as  one  iif  the 
Be,  htu  u  s  trenlleinan.  lie  aays,  "  1 
■kaoM  call  him  a  kiiid  ul'  a  Keolleinao  farmer." 
]|  na  kaid  \ty  ihe  couDBel,  that  the  Dohleate 
rfjirthemU  all  the  h'enlry  ;  but  ujjod  my 
■donf  tka  witnew,  he  lells  you,  "  No :  Ihey 
■ike  •  very  ooniidcrable  iliatiactioo  or  the 
lagbtr  MBil  niferiar  oobtesse ;"  lo  that  he  it 
•Cat  ji«iu  taty  call  in  Bn^^tgiiid  \a  ibe  litfht  uf 
tW  tiu4diing  class  of  men.  Ue  says,  that  as 
br  as  be  nfatcrred,  he  hehnved  very  well :  atid 
nai  K*  Ihia  i;Milleinan  speaks  frum  1763  lo 
Uf  1,  lltAI  be  liehareil  tery  well,  and  had  a 
•By  (mhI  characler.  lie  says,  that  he  oOeo 
tmthyt^  him  to  gei  wine  and  uther  things, 
■aJ  be  dispsli-'hed  his  commiiision  very  well. 
Be  Mys  be  |irinuiutlly  kept  company  at  Cita- 
4i^  with  •  iloa  Vigo  and  don  Saochio,  who 
»*n  l>o  of  (he  6rsl  rank  there  (lliat  is  I  lliink, 
thicapiul  of  ihe  Uland  ;)  that  he  always  be- 


Liimil.  K<H  era  or  of  ihe  itland  of  Minorca,  and 
Im  a  rc|[unetil  of  draguuns.  This  is  tbe  evi- 
teat  IB  (upporl  orihiKaclLOD  by  tbe  iilainliiT. 

ffhy  Ibni,  on  behalf  of  the  JefeDdaot,  they 
«di  you  thai  tbry  shall  make  out  Ibis  jusliG- 
i«as ;  tbat  they  shall  Hhew  lo  you  iba[  ihi« 
•■Whated  in  a  very  lorbuleut  and  disorderly 
-«<  iHtty  i  that  he  behaied  wiib  auch  ear- 
tsi^M,  bikI  id  such  a  mauaei',  under  such 
:-..^>l«tice<,  as  leaded  tu  incite  and  tu  rai«e 
'  idUatu  And  certainly,  gentlemPQ,  if  that 
'  ikt  ama,  it  is  ■  mailer  of  rery  serious  and 
~--  ■untmia  oonoerii  indeed.  For  the  go'erDor 
■■•  s  fnrtaon,  wtllioal  a  poiBibihty  nT  callinif 
<  BMber  armeil  lorce  to  auppreni  it, ' 
itrs,  it  a»  iiHurreciion  should  be 
ui  bvfi*  siDDngsl  thrm,  it  is  In 
my  fpr*^  muineot  aDil  irapurtaiice.  For  a 
fmw  inlrastnl  in  no  high  aud  important  a 
MMMB.  u»d  of  auch  a  delicate  sod  lichlisb  «uri, 
« lb*  (rnicrnnienl  of  ihe  island,  the  governor 
^amli  be  extremely  vigilant  tu  auppiess  the 
l«  Nmla  «r  mutiny  and  acdilion.     This  they 


A.  D.  1773. 


[166 


«  Mcila  «C  mutiny  and  acdilio 
*  Ibn  aliall  be  Blile  to  atieiv  y. 
A^,  a  we  shall  nol  be  able  Id 


Bui,  I 


strictly  and  duly,  accurdiiig  to  the 
-  >T  it>  whkb  it  ii  pleaded  ;  vet,  say  they,  we 
'  <ii<  by  ancb  dfcnmaiances  before  you,  ahew- 
at  thM  the  itmcral  behaviour  of  the  plaintifl 
■V  ni  Ibai  bind,  aad  of  that  coinptexion,  thai 
1  wifl  weigb  witliyou  by  no  means  In  give 
b|c  JsttUfn.  Tnis  is  what  I  think  was 
)nny  noeb  tbe  anbatanee  of  what  the  gen< 
4m»  ba* D  imalad  npou  by  way  of  opening 


Wb/  ibM,  in  tbe  KM  place,  though  ii 


read  at  Ihe  concltiilon  of  ihe  parole  ei 
may  remind  you  ol  the  several  matters  in  writ' 
ing  Ibat  have  been  read  ;  and  I  Ihiak  it  would 
be  but  mis-spending  your  time  tor  me  to  read 
(hem  ai  large  over  again  to  you.  For  when  I 
have  so  dine,  1  am  sure  1  shall  not  be  able  lo 
do  it  with  more  ditlinclness  thnn  the  iu|>eniaua 
officer  under  me  has  done ;  and  when  I  have 
finished,  Ihey  would  just  as  mnch  be  out  of 
your  memory  as  Ihey  are  now.  But  you  will 
remember  perfeclly  the  nature  of  the  pro- 
ceedings. I  purpoK  to  collect  them  ds  well 
as  I  can  intu  a  fncmi ;  to  bring  the  pith  of  ibem 
as  well  ss  I  can  to  you.  The  true  ground  uf 
the  dispute  was  this :  This  Fabrigas  the  plain- 
litf  wanted,  as  you  understand,  the  advantage 
of  an  order  of  hia  late  majasly  in  council,  in 
the  year  IT.'i'i.  by  which,  keeping  urdtr  the 
afforntian,  nut  exceeding  it,  but  keeping  under 
il,  every  one  was  to  have  ■  right  of  selling 
wines ;  so  as  he  did  not  exceed  the  affbratiou. 
Really,  genileinen,  an  exceeding  good  plan 
this  is ;  and  that  is,  a  tegulatiou  of  prices  ta 
keep  people  from  impuiinK  In  the  musi  iinmo- 
derate  manner  on  Ibe  inhabitants.  Very  likely, 
a  system  of  something  of  tbe  like  sort  would 
not  be  improper,  but  be  of  very  considerable 
uae  even  in  this  metropolis,  for  what  1  know. 
But  then  it  seems  that  this  order  lasted  ooly 
from  theyear  1752,  during  the  government  of 
general  Blakeney.  When  general  Johnston 
succeeded  general  Blakeney  as  governor  of 
this  island,  he  thought  proper  to  make  an  al- 
teralion  in  that  order ;  and  tbe  substance  of 
the  alleralioD  which  he  made  was,  Ibat  for 
the  future  it  should  not  be  in  Ihe  suburbs  of 

departments— lour  besides  ihia  ariaval,  as  it 
is  called,  of  St.  Phillip's) ;  and  that  lur  llie 
future  it  shall  not  be  sold  promiscuously  by 
every  une  when  Ihe  atforalion  was  made, 
but  that  for  the  future  Ihe  lour  wards  of  ths 
arravsl  of  St.  Phithp's  should  draw  lots,  and  so 
take  it  in  auccesiion  ;  I  suppose,  sell  one  aller 
anollier  till  ibe  wine  is  disposed  of.  And  it  dues 
seem  lo  me  by  the  evidence  which  has  been 
given  by  one  of  the  wiinessei,  which  you  will 

ler  than  when  sold  belter  skelter  and  promis- 
cuously. Aud  this  regulation  was  pursued  with 
anme  advantage.  Then  you  see  the  plaiutiff 
wanted  to  go  back  to  ihe  first  order  of  1753, 
wbicbistheorder  of  ibekiiig  incouucd.  From 
ibence  vou  see  all  ihia  bustness  sprung,  and 
from  Allimundo's  selling  wine.  That  is  one 
grievance  that  was  complained  of,  and  which 
seemed  to  be  pretty  material,  1  contest,  as  it 
strikes  me;  because  I  recoiled,  thai  by  one  of 
the  orders  It  ii  expressly  forbid  that  ihe  oScen 
or  judges,  or  any  of  them,  should  have  any  in- 
termeddling with  trade  or  tratBc.  Now  the 
complaint  nf  the  plainiiffngainsiibis  Allimundn 
is,  that  he  who  had  tbe  check  npon  alt  tha 
rest,  this  mustastaph,  buys  ureal  i^iianliiies  of 
grapes,  and  makra  a  vast  quantity  of  wine  him- 
self.   So  while  be  kept  the  othen  under  check, 


MT]  M  GEORGE  III. 

be  tells  his  own  wine.  Therefore  that  is  ano- 
tiier  tliinji  to  lie  considered  of.  Therefore  you 
aeo  there  are  ivjieaied  |»etilion8  upon  this  o<*ca- 
aioii.  And  I  will  only  say  this :  that  to  be  sure 
it  inma  out  at  ^enj^tti  to  hate  been  a  mistake  in 
Mr.  Wright'a  evidencf-,  that  that  numhfr  of 
160  |*era(Mis  that  were  nienlionc<l  by  the  defen- 
dant's counsel  as  people  by  him  to  be  produced 
to  back  bis  petition,  or  people  with  which  hta 
petition  should  lie  backed,  that  be  considered 
as  a  mob,  because  he  takes  it  down  in  writing" 
himself:  and  when  it  comes  to  be*  read,  it  docs 
Appear  that  the  ex|>re88i(in  of  the  plaintiff  was, 
that  he  would  bring  150  people  with  him, 
dealers  in  wine  and  grapes,  in  order  to  »ihew 
that  his  petition  was  exceedingly  reasonable, 
and  would  be  agreeable  to  tiiem.  Now  that 
you  see  is  the  substance  of  this  writing,  toge- 
ther with  the  several  |>articulars,  orders,  and 
proceedings,  which  1  dare  say  you  have  in 
ymir  memory.  1  must  obsenre  this,  to  be  sure, 
these  gentlemen  are  not  bred  in  the  train  of  the 
law,  and  in  a  course  of  legal  proceedings;  but 
general  Mosty  n  seems  to  me  to  be  as  inquisitive 
as  he  possibly  can  to  find  out  the  bottom  (»f  this 
thing.  It  does  not  appear  from  the  witnesses 
that  the  general  had  the  least  sdf- interest  to 
serve  in  this  business  of  his  own,  no  profit  or 
advantage  to  himself;  there  is  no  evidence 
whatever,  not  a  spark  of  that  sort  that  appears. 
He  sends  to  Dr.  Oliver  and  Dr.  Markadal  to 
nake  enquiry  into  this  matter.  He  sends  to 
them,  and  desires  to  know  their  opinion.  He 
convokes  together  a  council  of  the  field-officers : 
and  then  they  are  of  opinion  upon  the  whole  of 
this  business,  (whether  right  or  wrong  is  not  to 
the  present  question,  but  it  strikes  me  upon 
this  evidence,  that  this  general  Mosty n  noes 
seem  to  me  to  be  extremely  solicitous  and  de- 
sirous to  inform  himself  as  well  as  he  can,  what 
is  to  be  done  upon  the  occasion ;)  and  at  length 
it  ends  in  a  general  answer,  sucli  as  it  was,  that 
it  would  be  very  right  to  banish  this  man.  Now 
they  proceed  to  call  several  witnesses. 

James  Wright  says,  he  resided  in  Minorca 
from  January  1771  to  the  middle  of  the  year 
1773,  as  secretary  to  the  defendant  Mr.  Mosty  n 
the  governor.  He  tells  you  that  this  island  is 
divided  into  four  districts,  exclusive  of  the  ar- 
raval  of  St.  Phillip's,  which  the  witness  alwaya 
understood  to  be  separate  and  distinct  from  the 
others,  and  under  the  immediate  order  of  the 
governor  (you  will  observe,  that  it  is  in  that 
district  that  the  fortification  stands) :  so,  says 
he,  that  no  magistrate  of  Mali  on  could  go  there 


Action  Jor  False  Imprisonment^^ 


[1«8 


the  court  of  the  chief  justice  criminal.— I  would 
ask  a  question  of  Mr.  Wright.  Has  this  justice 
criminal  a  commission  to  try  offences  P 

Wright.  He  has  the  hing*s '  commission 
to  try  and  to  hear  all  causes  when  they  cimie 
before  him.  He  bnngs  them  to  the  governor, 
who  signs  them ;  and  till  the  governor  has 
signed  them,  they  are  not  valid. 

Q.  But  when  the  covernor  has  once  signed 
them,  ban  this  gentleman  thejuriFdictiontotry 
offenders?— /I.  The assesseur criminal,  and  the 
officer  fiscal,  who  sits  as  judge  with  him,  bring 
their  opinion  to  the  governor,  who  hears  and 
api^rovea  of  their  opinion,  and  signa  it.  . 

Do3«ou  make  any  distinction  beiween  one  part 
of  the  island  and  another  P— The  arraval  oi  Bt. 
Phillip's  is  so  exempt  from  all  kind  of  jnris- 
diction  (at  least  was,  when  I  was  there),  that  it 
is  a  rule  in  the  island,  that  if  any  biidy  dies, 
comes  by  their  death  by  any  accident,  drowned 
and  fished  up,  that  the  criminal  assessenr, 
with  I  believe  the  fiscal  and  his  officers,  goes 
to  the  dead  body.  They  take  the  thumb,  and 
ssy ,  Who  killed  yon  f  This  is  a  form  they  go 
through  by  way  of  bringing  about  a  kind  ef 
inquisition  taken  by  a  coroner.  Whenever  they 
bare  occasion  to  go  there,  they  ask  the  go* 
vemor  leave,  if  i^ithin  the  arraval ;  and  there 
is  a  particular  instance  of  a  soldier's  wife  beinff 
killed  by  her  hnsband. 

Suppose  a  person  is  guilty  of  a  murder  within 
the  arraval,  whom  is  he  tried  by  ?— -The  lasea* 
seur  criminal  goes  and  takes  inqnisition.  That 
be  does  not  do,  till  he,has  the  governor's  leave. 

Suppose  a  person  is  murdered,  and  the  mur- 
derer IS  found  out,  to  be  sure  you  don't  lei 
the  murderer  escape  with  impunity  ?— Ne. 

Now  let  me  ask  you,  wiihin  the  arraval  hy 
whom  is  he  tried? — ^The  governor  appoints, 
but  he  generally  appoints  the  assesseur. 

Then  the  governor  does  not  try  him  him** 
self? — He  never  tries  any  thing  of  the  sort* 

Then  be  deputes  somebody  to  try  himP— 
Yes. 

Suppose  in  lesser  offences,  of  thef\  oiir  riot, 
does  he  not  appoint  other  people?— In  smaft 
offences,  the  mustastaph. 

Mr.  Just.  Gould.  Gentlemen,  there  was 
in  consequence  of  this  affair,  a  proclamation, 
that  no  memorial,  unless  tor  mercy,  could  ho 
presented,  unless  it  was  first  signed  by  an  ad* 
vocate.  adroiited  in  their  courts.  He  saj^s  that 
the  king  in  council  issues  u|K>n  application, 
alterations,  which  are  registered  in  the  court  of 
royal  government ;  which  inclmies,  as  1  under- 

aSi*  •         B  I  **i  ^^1  **         a* 


to  exercise  any  function,  withnut  leave  first  ob-  stand  him,  both  the  civil  and  the  criminal  jn- 

tained  from  the  governor.    The  whole  is)»nd,  risdiction.     He  says  that  the  defendant  hein|f 

be  says,  is  goemed  by  the  Sp.uiish  laws,  sub-  much  teozed  by  the  plaiiitifl',  by  repeated  ap- 

2 ^  A.'L  I :^.i  t..  *u„— . -.    u..*  -...*  -.1.  _i: .:. i: Tl^.i  %mL   «v.:.^i..  «1 : uL* 


iect  to  be  varied  by  the  t;overiior ;  hut  not  s*. ob- 
ject to  that  variation  in  re spert  to  meum  and 
ftttfffi  of  property,  but  as  fo  the  internal  police 
of  the  island.  And  he  teJIs  yon,  that  his  pro- 
clamation, with  a  iiennliy  annexed,  is  of  such 
force,  that  where  the  penalty  is  annexed,  if 
it  is  broken,  the  party  is  subject  to  it,  and  u 
iSaUe  to  be  imprisoned  for  non-payment     He 

9«y9  tbil  1b9  putjT  if  fcised  aod  brought  into 


plications,  directed  Mr.  Wright  to  enquire  what 
aort  of  a  man  he  was.  He  tells  vou,  that  the 
plaintiff 'k  father  h^s  some  nmafl  vineyards; 
that  the  plniiitiflf  is  a  lover  of  politics  ;  that  he 
spends  five  days  in  seven  in  talking  of  |iolitics  ; 
that  at  that  time  he  believes  the  plaintiff  had  no 
property  at  all.  Then  he  speaks  as  to  the  cha« 
racter  of  Mr.  Mosiyn.  It  seems  net  to  be  dia-/ 
puted  at  kaat  but  lie  is  an  officeri  and  a  H&an  of 


^ahrigas  v.  Motlt/«. 


A.  D.  17T3. 


[ITO 


J  U  fiDssible:  no  one  ex- 
r  Feeliiigt,  antl  liis  conilucl  in 
inaniier.  Ttit-n  tliis  ffCH (le- 
ws CDCs  ihrougli  llie  whole  detiit  of  thcue 
^«tl  wrilittgB  wbkH  liaTif  liven  read  to  jimi, 
•Wi,H  I  nM  Wtiire,  I  •.liall  not  tske  i>|. 
jMrUcne,  f«r  llie  rfasuoB  I  hute  ■Ireaily  ^rea 

am  rrpMiltni;  oier  ajraio,  tor  you  tiive 
thrni  kII  read.  He  tells  you,  otnongat 
^dun^,  tb«l  tlie  bliabitaaU  of  (lie  urrnvil 
■H •  vetiliaft  to  Mr.  Hoatyn  (ha(  Ihe  r'^uiila- 
a«miic1tt  continue,  and  dot  be  alKted,  as  Hie 
jtitdfrdraiml.  He  iHlu  you.  that  tl.e  plain- 
•ffbinBi{be«a  willi  iWceDernl's aiiMu-camp, 
M  Miirss  inrt  him.  and  civilly  desired  him  to 
IMdOdt  irb«l  h«  trished;  that  il  should  be 
<ar.  lie  says  there  nas  one  Mr.  Vedall  that 
antnmnml^rpreitr.  and  spriest,  ooaSe^uy, 
IMjoinrd  witb  Mr.  Wcigh(  to  press  the  pFaiD' 
(f  la  (a  bame  >Dd  niind  his  affairs,  and  no( 
tihiae  trimaetf  >tito  (ruiible.  Then  (his  gen- 
Ibwa  cirears,  that  Mr.  Vedall  raid  rrom  the 
ftaixHT  •■  iol*rjireter,  thnt  he  would  come 
tilii  110  Htm  tn  back  his  petition,  or  with  a 
pMM  backed  viih  Hi}  m«n.  This  ^nlle- 
mniaia,  be  tiii'terstuod  by  thatamob.  1  i^hall 
pvany  stale  t» you,  us  I  hare  already  hinted 
(•pa,  the  niivtaVe  in  ibal  respect.  He  saya 
tM*  wtm  a  IvDiT  <i<>n*ergBlioD  by  Vedall  wilb 
iw  ^utiff,  aa  bis  interiirpter,  to  desire  him  to 
-  .1:  he  Mill  n;t<eBt<-d  the  tame.  Then  be 
.11  iliat  he  inlbrined  ihe  piiFrn'ir,  ihal  there 
■  |«i[ile  ibut  he  undvratood  were  tn  ac- 
-iiiif  tbis  man  as  a  mob  the  next  day. 
>'  ilie  x^neral  seat  Tor  the  officer*  to  nirel 
.  llie  neit  tnoraiiiif.  They  Bccordln<;ly 
V.  A  large  Dumber  of  people  were  ex- 
."id,  but  only  four  people  nt'  the  inferior 
'-r  W«wgbt  a  petiliun.  They  were  dis- 
^'^  to  go  bome  peaceably.  Thai  Ihe  result 
-M  nbole  «aa,  that  the  plainlitT  was  ba- 
.^  fnM)  tlie  island.  Ue  says,  Ilial  Ihe  de- 
-tMl  aent  him  the  iritnrsi  lo  the  chief  jus- 
tiMd*il  and  criminal,  who  are  both  Mioor- 
•W,  to  aak  what  wai  the  Kovenior's  power 
■  Ms  (!•»?  They  ae lit  word  back,  ibat  his 
pal  J  rxiOHli'd  nier  the  man  in  any  shape  he 
jlrii ;  and  if  he  chose  to  banish  him,  he 
tufbt  i  tbvy  would  aniner  It  with  their  ean. 
Be  carried  ilur  answer  to  llie  defetidanl;  tint 
Wnrr,  doubting:  Ititnself  of  the  law,  the  as- 
ivanr  eiail  deUnred  him  an  onler  In  wriliog;, 
vfcwh  wai  dated  in  I.'>90;  aod  that  imparled, 
Ihll  thoolfh  il  was  tery  Gt  Ibr  llie  goffrnifr  to 
■k  (b*  adne«  of  Ihe  asseaaeura  ciiil,  yet  that 
iS  DDt  by  any  meana  bound  lo 
Dt  deci^ite,  as  in  mat- 
lys,  that  die  assesseur 
.  leni  his  officer,  which 
bia  lipstalf,  to  the  ^orernor,  lo  ap- 
Ihe  plaiatilf,  who  accordingly  was 
r«  k««t  in  priuin  about  Arc  days,  and 


teiafpnipOTty.     ili 


Tben  ha  idb  you,  upon 
Ata.  tbal  AUtmiiiidn  uiakcs  wine  and  sells  it  in 
|l«a,  bnl  ox,  a*  be  hclievea,  in  retail.  He 
>p  thai  (be  Hhtofiutu  laofiiage  ia  very  bad 


Spanish.  Then  he  is  desired  lo  look  al  the 
pH|ier;  (ar  he  had  a  paper,  wiih  which,  in 
Kiting;  bis  e*id<9nce,  be  rH'reslied  his  memory  : 
biit  upon  hrokini;  lo  (he  words  iu  ihst  p»ier 
relative  to  Ibe  160  men,  the  words  that  Iw  baa 

"  I1ie  Earns  day  Mr.  Fubi  igas  came  liir  an 
■nsiver  lo  hie  |>el<tiOD,  be  told  the  governor's 
cpcretary,  iliat  he  should  Come  the  next  day 
with  a  pi-lition  nf  people  concerned  in  grapra 
and  wine,  which  they  would  eign  and  vnoie 
witb  ihemselies,  to  the  noraber^  150." 

Sotlint  you  see  this  gentleman  aayK,  as  I 
ajiprehend  him,  {  I  dou'l  know  whether  this 
pBpei'  that  be  has  now  producnl  ia  llie  original 
paper  that  he  set  down  the  minutes  on  Ibr  re- 
cnjleclioii  and  fur  remembrance  al  the  lime ;  I 
dnu'i  know  whe'hvr  lhai  is  so  or  not — how. 
erer,  it  may  be  a  cojiy  of  it)  he  said  he  set  il 
down  upon  loose  piecea  of  paper  at  first.  If 
thai  be  the  case,  tbc  strong  probability  ia,  that 
thia  entry  that  I  bare  read  (ii  you  must  hsie 
been  set  down  rei'eully  alter  the  convenalJon. 
You  see  the  worls  arc,  that  it  was  to  be  150 
people  concerned  in  graiies  and  winn.  Then 
he  tells  vou,  that  upon  the  lllh  the  governor 
and  the  neld-olBccTs  met,  and,  as  you  heard 
upon  his  original  examination- receited  a  me- 
niorlal  by  four  men  signed  by  blank  person* 
—  you  see  the  nnmber  it  letl  blank.  Thia 
gentleman  say«  he  cannot  recollect  ihe  numltr. 
He  says  be  was  couiilintc  them,  but  be  believes 
there  were  more  than  40,  between  41  and  47, 
he  can't  be  exact ;  but  Ihe  number  of  persons 
liy  whom  it  la  siijned  is  in  thia  copy  blank. 
The  purport  uf  llii>  memorial  is  la  desire  that 
ihe  old  practice  may  be  pursued.  To  which 
he  answered  by  the  officers,  ihsl  Ihcy  should 
return  home,  and  behave  as  good  and  j>eacea- 
ble  subjects  Iu  bis  majealy  ought  lo  do.  I 
have  anticipated  il.  I  see  he  says,  according 
to  hia  memory,  there  were  from  41  lo  47  aig- 
natnres.  There  were  a  greut  many  marks, 
yoii  understand,  lo  this  petition  delirered  by 
the  four  men.  He  can't  say  be  counted  it 
through,  and  can't  affirm  what  Ihe  number 
was.  He  nat  further  examined ;  and  he  aava, 
that  upon  strict  enquiry  it  did  nnt  appear  ifiat 
abore  one  in  ten  supported  ibe  plaintilTs  de- 
sire ;  he  ia  sure  he  allows  a  greater  pro|<ortioit 
than  the  truth  was  :  and  he  says  he  informed 
Ihe  defend  ant  Mr.  Mostvn  of  ihat.  Re  made 
the  enquiry  at  ibe  defendant's  request,  in  order 
to  discover  the  sense  uf  the  inhabitants- 
John  Pleydfll,  ard-du-camp  to  the  govenim', 
says,  that  on  the  9th  of  September  ITTl.tbe 
plaintiff  asked  btm  to  »ee  the  goremor.  He 
told  him  if  he  had  any  tbint^  fur  the  governor, 
he  would  deliver  it.  AIit  a  liiile  hetitaiion 
the  plainlifrdehvered  a  niemi.iial,  and  desired 
bim  to  tell  the  governor  he  should  come  die 
next  day  accompanied  by  300  or  iiO  Inhabi- 
tants of  SI.  Phillip's,  lie  aaya  he  carried  the 
memmial  lo  the  gnrernor,  and  told  tiiin  wbal 
the  plaintiff  bad  said  ;  ujHin  nhich  he  says, 
that  the  governor  that  day  tent  to  the  com* 
maniling  ofiicert  «f  tba  corps  to  toeet  at  tfaa 


171J 


U  GEORGE  III. 


Action  Jir  False  ImprisonmerU'^ 


im 


ffoveraor'fi  the  next  mdrning,  to  see  bow  he 
thoalil  receive  the  |)latntiff,  and  the  fieople  that 
were  to  come  with  him.  Now  here  you  see  in 
the  efidence  giren  by  this  Mr.  Pleydell,  there 
is  not  that  ezplaoatioo  of  the  nature  of  the  end 
and  desijp  of  these  200  or  250  people  being  to 
come  with  him,  as  there  is  m  tnat  memo- 
randum that  Mr.  Wright  produced :  for  this  is 
in  general  said  300  or  250  people.  And  I  can't 
help  remarking  to  you,  that  it  seemed  to  make 
an  impression  on  the  governor,  and  to  alarm 
him :  for  it  was  upon  his  delivering  this  mes- 
sage to  him  that  Pleydell  says  he  did  desire 
the  6eld  and  commanding  officers  of  the  corps 
to  assemble  the  next  morning,  to  see  how  be 
should  receive  the  plaintiff  and  the  people  that 
were  to  accompany  him.  But  he  says,  in- 
stead of  the  plaintiff  and  such  a  number  of 
people,  four  men  came  the  nexk  day  and 
Drought  a  memorial.  He  believes  all  the 
commanding  officers  were  there.  He  was  told 
by  the  governor  that  the  sense  of  all  the  offi- 
cers was,  that  the  plaintiff  should  be  taken  up 
as  a  daogen>us  and  seditious  person :  he  says 
be  had  consulted  the  Minorquin  judges,  and 
their  opinion  was  the  same  with  the  military 
officers.  He  says  this  gentleman  is  an  inha- 
bitant of  the  arraval,  just  by  the  glacis  of  the 
fort :  and  says  that  he  kept  his  father's  vine- 
yard :  and  that  the  defendant,  far  from  being 
a  tyrannical  over- bearing  man,  is  one  of  much 
temper  and  humanity,  and  the  witness  served 
under  him  the  last  war. 

Upon  his  cross-examination,  he  understood 
by  the  plaintiff's  saying  he  should  bring  200 
or  250  men,  that  it  was  to  enforce  or  give 
weight  to  bis  petition,  to  certify  that  that  was 
their  opinion  ;  that  is,  that  they  concurred  in 
the  plamtiff  's  opinion :  but,  says  he,  so  many 
people  coming  together  is  au  act  in  itself  of  a 
tumultuous  kmd.  He  says  the  people  in  ge- 
-neral  wished  to  have  Mr.  Johnston's  regulation 
continued.  As  to  the  memorial  that  was 
brought  by  the  four  men,  he  did  not  read  it, 
and  bad  it  not  in  his  hand ;  but  by  just  the 
superficial  glance  he  had  of  it,  be  thinks  there 
might  be  50  or  60  names  to  it. 

Robert  Hudson,  fort* adjutant,  says,  that 
upon  the  lOtb  or  1 1th  of  September,  tlie  mns- 
tastaph  of  St,  Phillip's  told  him,  that  upon  de- 
livenng  out  a  proclamation  (though  I  ought 
not  to  sum  that  up,  for  what  this  Allimundo 
■aid  is  no  sort  of  evidence) — but  he  says  that 
having  received  this  intelligence  (so  far  it  is 
material)  he  did  give  the  governor  an  informa- 
tion of  it:  the  governor  was  then  in  Mahon. 
He  says,  that  iK'fore  the  plaintiff  made  this  ob- 
jection, he  nerer  heard  any  objections  to  Mr. 
Johnston's  regulation ;  that  it  was  to  prevent 
the  wine  from  turning  sour,  by  being  sold  in 
that  hurrying  sort  of  way  ;  that  great  quanti- 
ties of  it  produce  fluxes  and  oUier  diseases 
among  the  garrison,  for  there  are  few  cellars  it 
seems  in  the  garrison.  He  says  after  this  re- 
gulation, in  ser oral  years  experience,  none  of 
the  wine  dkl  tarn  sour.  Tmd  Ihera  was  a- 
f  ucstMB  that  oocuicd  to  me  to  Hkf  wj 


^ 


the  serving  it  out  in  this  sparing  manner  did 
not  influence  the  price.  They  said,  no,  be- 
cause the  afforation  fixed  the  pnoe  that  it  could 
not  exceed  it. 

Colonel  Patrick  Mackellar  says  he  knows 
the  plaintiff;  he  was  called  Red  Toney:  1 
suppose  he  has  red  hair.  He  says  he  bprs  a 
very  bad  character ;  that  he  was  a  seditious, 
troublesome,  drunken,  shuflUng  fellow;  that 
he  had  many  complaints  against  him  from  two 
mustastaphs.  He  was  in  the  island  from  1736 
to  1750,  and  again  from  May  1760  to  last  May. 
He  tells)  you  the  arraval  of  St.  Phillip's  is  sur- 
rounded by  a  lime-wall  on  one  side,  and  the 
other  side  a  ditch ;  that  the  arraral  is  a  royalty, 
where  the  governor  has  a  jg^ater  power  than 
any  where  else ;  that  the  judges  can't  inter- 
fere but  by  the  governor's  consent. — That  cor- 
responds exactly  with  the  explanation  that  Mr. 
Wright  gites. — He  says,  in  other  parts  of  the 
island  there  are  jurats,  but  in  the  royalty  there 
is  only  this  mustastaph,  who  is  appointed  by 
the  governor  or  commander  in  chief,  and  is  aft 
pleasure  displaced  by  him.  He  takes  care  of 
weights,  measures,  and  markets,  and  of  all 
wine  and  the  expenditure  of  it,  and  settles 
little  disputes  between  the  inhabitants  in  the 
first  instance.  That  the  magistrates  at  Mahon 
ut  the  afforation  within  tneir  jurisdictions. 

his  mustastaph  does  not  make  any  afforatkn 
himself,  but  acquiesces  under  that  of  Mahon : 
he  only  signifies  the  afforation  that  has  been 
made  at  Mahon.  The  Minorquinsare  in  ge- 
neral governed  by  the  Spanish  laws.  When 
it  serves  their  purpose,  they  plead  the  English 
laws.  Some  are  well  affected  to  our  country  ; 
some  are  not.  He  attended  the  governor  once 
or  twice  on  account  of  the  plaintiff;  and  he 
says  that  the  general  opinion  of  all  the  offi- 
cers was,  that  the  plaintiff  was  a  dangerous 
person,  and  that  it  was  proper  to  take  him  up 
and  bring  him  to  punishment ;  and  were  of 
opinion  to  banish  him.  He  says  the  defen- 
dant is  a  good  officer,  a  polite  well-bred 
man,  that  he  carried  liis  command  in  the 
genteelest  manner,  and  is  a  person  of  great 
humanity. 

On  his  cross*  examination  he  says,  that  b« 
and  the  other  field-officerb  met  by  the  deten- 
ant's  desure,  to  know  what  was  their  opinion 
upon  this  business.  Two  of  the  judges  of  the 
island  thought  it  entirely  in  the  governor's 
breast  to  do  as  he  pleased  ;  but  there  was  no 
trial.  He  does  not  recollect  whether  major 
Norton  was  of  that  opinion :  it  was  the  opinion 
of  the  majority.  He  was  asked  whether  major 
Rigby  was  of  that  opinion  or  not  ?  He  says 
he  can't  say  how  that  was,  but  does  not  re- 
member that  any  one  officer  dissented  from 
that  opinion. 

Then  Edward  Blakeney,  secretary  to  the 

Swernor  of  that  name,  is  examined.  He  says 
at  nothing  can  be  executed  in  the  arraval  of 
St.  Phillip's  but  by  the  goremor's  permisskM-t 
it  is  a  loyahj ;  be  has  the  absolute  gofcn^ 
He  sava  that  gen.  Blatai^  a^ 
'  '1  the  jm  XTMba^ 


Fnbrigai  V.  Mostipu 

3U  tfiars  into  Suain  or 
1  time  uf  peace.  He  sayi 
■u  nfterwRrila  liy  a  gr*al  deal  of  inter- 
n  Ipflte  tnrPD  li>  ihoae  people  10  relurn. 
y<t  iliBt  llie  |iuwer  ilsell  trss  oeier  ills- 
porJ,  ■ml  he  look  ii  lo  be  baniletl  down  from 
Ik  Spaiiiarile,  bj  wliose  laws,  as  jou  obsene, 
Ih  IliiiurquiDi  are  goierned,  nnd  at  their  owd 
n^ue«t.  He  «ii]rB  the  juilges  have  applied  lo 
Hw  ■itnera  for  ibe  goveruor's  leare  to  execute 
pBce—w  ill  llie  arnTal.  lie  says  llie  lale 
imt  wnl  four  re^meols  to  relieve  tbe  irad|i« 
nuaned  liicre,  (bq  order  of  humanily,  like  liia 
a^jnly)aiHl  (olia*eall  llie vri*eB[in<l  chilitren 
tnofltt  Itoine:  Lowever,  a  priest  took  a  liking 
1»  vo*  of  the  ^a\mg  nomen,  and  wnulil  not 
Mrerherup.  The  Driest  wns  baiiiaheil ;  Ibe 
!  of  wbicl)  waa,  ibe  girl  vm  de- 
Bod  tlie  priest  was  brought  back 
(oin.  lie  gives  lbe«e  as  three  loaiances 
ntrc  pewtle  were  bHuiabed  from  tbe  iiland. 
H*  M]r«  tl»l  iheee  I'riart,  two  PraociECdug, 
w«r*,  •*  he  belieres, antireii,  MinorijuiaH.  This 

*  tbie  parole    etidence  that  i«  siren   on  the 
jKlaS  tb«  ilefendanl.     I  bave  already  slated 
-'}oo  Ibe  cabsiance  of  all  that  written  evi- 
nce :  joo  baie  heard  ji,  and  jou  are  fully 
•>ten  of  all  the  circamstances  Bltcnding  this 

Kaw,  geollemeD,  ii  is  for  your  consideralinn, 
ifcillirr  tbe  defendant,  general  Mostyn,  has 
afc  (wt  bi«  juiliGcation ;  whelher  he  has 
ymt6  that  tbe  derendant  was  guilty  ofa  riul, 
^itd  *  d»turbaoL-e,  and  that  be  emleaioured 
"=  'wiU!  and  lo  ilir  up  a  tnutiuy  and  a  sedition 
-  llie  ;[arr>*OD.  If  that  is  the  case,  I  should 
-■^ae,  gr'odflineu,  tbe  plainlilF  will  appear  to 
;«u  a  ncrwin  of  a  vety  dangerous  disposi- 
tM(  •»■(  I  bat  tome  very  strict  methods  must 
hmiwijf  to  be  taken  in  Buch  a  silualion,  In 
Mkllt  pre*erTe  the  (farrison,  and  to  preTent 
MaMrrcction.  If  it  is  insinuated  to  the  aol- 
tm%  tlwt  they  are  abused  by  the  officers  under 
Ik  cnrcToor,  by  the  gurernnr'a  connivance, 

*  ky  hit  rcmimneiB;  we  will  say,  Ihougli  he 
Ui»o  kind  of  iatereit  in  It,  but  by  his  gross 
MBHKMgemonl,  ibey  nre  oppressed  and  im- 
*Bais|nHi;--»uppo*e«uoh  a  persuasion  abould 
WiafMeil  into  ihe  people  composing  the  gar- 
nna,  1  think  it  i«  lery  clear,  and  I  neeil  not 
•f  ue  M  yan,  lo  abew  wbal  dnngertiui  conie- 
ytti-M  may  rMall  from  (hat.  Then  you 
*fl  eoMiler  tiow  this  case  stands  in  thai  re- 
dact. You  (re  thiit  this  pervon,  afier  several 
f^n  (»  D«rw  nvulalion  liDvIng  been  made  by 
piiBui  Johnnton)  is  for  selling  up  a^ain  and 
mVnnc  an  old  rri[iilBtiun  made  In  1752  i    and 

"      !  orerail  lO  to  do.      Then  the 

ad  was  to  be  taken.      It  lain 

ie|a  reacind  Ibis,  as  I  ap- 

*feaal  dispute  it  lint  that  by 

*^  -  ■     his  plea,  he  is 

il  and  military 

lod    I  presume, 

leBuch  an  aller- 

;   the  goferoor 

4  with  it.     Then 


..  D.  1778. 


[!T* 


Ibis  person  wants  lo  set  that  old  buiiness  oa 
loot  agaio ;  and  be  does  produce,  (lor  so  I 
must  lake  it  from  tbe  writing  which  Ihal  gen- 
tleman hai  produced)  be  does  mean  to  shew  l« 
the  governor,  that  there  are  a  Tast  nutnUer  of 
people  of  his  sense  in  tbe  affair.  Tbetnislor- 
lune  of  il  U,  however,  thai  Ibis  is  not  expreasly 
conveyed  lo  Ilia  governor  ;  because,  aecording 
to  the  whole  belief  of  Ibe  ageni,  ibougb  ha 
understood  that  it  was  meant  lo  give  weight 
to  tbe  petition,  uot  to  proceed  to  direct  vio- 
lence; forwbati  can  find,  that  was  notdirect- 
ly  explained  lo  general  Moslyn.  Now  you 
will  consider  u]ion  this  evidence,  whether  you 
are  satiified  that  ibis  was  such  b  behaviour  in 
plainiiff,  as  lo  affiird  a  juit  conclusion,  Ihal 


how 


n  that  V 


irup 


and  a  mutiny  in  the  garrison  ; 
tlier  be  meant  no  more  than  earnestly  to  presa 
his  suit,  and  le  endeavour  to  obtain  redreu 
from  what  seemed  lo  bim  to  be  a  grievance. 
If  you  shall  see  It  in  that  latter  light,  lo  b« 
sure  there  is  no  ijueslion  at  all  that  he  will  bw 
entitled  to  recover  in  ibis  action.  As  for  tha 
damages,  1  sliall  nut  say  a  word  upon  that 
matter,  because  it  is  yonr  province  to  coniider 
on  il  upon  all  the  circuuuiances,  Then  thera 
is  another  consideration,  which  will  be  a  legal 
CDDsideraiion :  that  supposing  you  should  ha 
of  opinion  that  this  was  really  a  seditious  helia* 
vionr  in  this  plaintiff,  which  yoa  will  consider 
of,  and  also  whether  he  acteJin  such  a  manner 
MS  to  siir  op  sedition,  you  will  be  pleased  to 
say,  that  when  you  brinjrin  your  verdict.  Tbe 
next  thing  is,  thatsupposingyou  seetheplaiu- 
liff's  conduct  in  that  light  as  a  mutinous  pur- 
pose, whether  the  defendant  could  be  warranted 
to  proceed  in  that  manner.  That  is,  to  be  sore, 
B  matter  of  very  great  consequence.  It  is  not 
like  persona  in  tbiseoantry,  in  England,  where 
no  freeman  shall  be  banished  his  country  ; 
which  is  carried  to  such  an  extent,  that  lord 
Coke  tells  us,  that  it  is  not  in  tbe  power  of  tbe 
king  to  send  a  man  against  his  will  even  to  he 
tbe  lord- lieutenant  of  Ireland  (1  don't  lielieve 
there  are  many  genllemeu,  thai  would  recoil 
at  Ibal);  but  it  could  not  be  done,  because  it 
would  be  ail  exile:  you  drive  a  man  against 
bis  will  out  of  his  native  country.  Bui  how- 
ever, this  iaa  case  you  see  in  a  coni]uere<t  island, 
in  a  ceded  island.  And  certainty  1  should 
conceive  myself,  that  if  in  a  garrison  where 
il  is  absolutely  necessary  to  beep  down  all 
these  inulinuiis  spirils,  from  the  aj'parent  rea- 
son of  danger,  that  il  must  certainly  be  law- 
ful for  the  governor  at  IcasI  to  lav  a  man  up  in 
prison  that  is  turbulent.  But  I  should  doubt  a 
great  deal  myself ;  il  wdl  beamalttr  thilyou, 
genllemeti,  will  have  an  opporlunily  lo  consider, 
if  you  please,  if  you  shall  be  of  opinion  that 
the  plainlilTs  behaviour  was  sediliuus;  and 
tbiit  IS  the  reason  that  I  desire  you  to  atlend  to 
that,  and  tell  me,  when  you  give  in  your  ver- 
dict. It  would  be  carrying  inalters  lo  a  very 
great  length  indeed,  in  my  appreheuaon,  lo 
■ay,  that  yoa  should  exile  and  banish  *  man 
from   bto  oativa  aountry.      I  ctnool,  litljog 


m] 


UGEOEGE  ni. 


AiAvmJijT  Falu  Jnipivotrnml'^ 


[176 


here,  and  u  at  prevent  adrited,  thick  that  cm 
in  such  a  situattuu  ibatcooM  be  ivamnUd.  I 
UDDOt  think  bnt  tbat  a  perMD  might  bo  ae> 
cuied  Biul  confiued,  in  oriler  to  be  brought  to 
trill,  uid  piMfierty  puniahed  for  it.  I  lea** 
il  to  ynu  UDdcr  them  obterfatiooa,  and  yoo 
will  cooaider  upon  tite  whole  of  it,  what  da~ 
mages  you  ahall  please  to  give  to  the  [iJaia- 
tifT.  As  to  the  defeodanl,  yoa  hear  the  cha- 
racter be  bcara  frum  all  the  wlluesaea:  a  maii 
of  great  humaDity,  who  haa  tteeo  guillj'  of  an  I  tot  damage* 
ioordinale  ute  ol*  hia  power,  but  sot   wiLb  a  '' — 

nalefukot,  bad,  aoil  wicked  detigo.  To  be 
•ure,  you  will  uot  deal  out  Ibe  dainagea  witb 
the  aaine  *ieir  aa  you  would  *gain>t  a  nuo 
that  acted  clearly  aud  Jema'ttralily  wilb  ma- 
lice, ll  ia  your  profiuce,  genllemen,  to  con 
ndcT  all  the  circumalMkcea,  and  to  gire  in  your 
Tetdict  accord  iugly. 

The  jury  withdrew,  and  in  abonl  an  honr 
Kturueit,  and  ga*e  in  their  ter<Jiet  for  llie  plain- 
tiff; with  3,000/.  danrai(a,andalleailRafwit. 
—And  at  the  aarae  time  nid,  that,  in  rbrir  opi- 
nion, the  plaintiff  was  not  guilty  of  mutiny  or 
icditioD,  or  acted  in  any  way  lending  thereto. 


FdKTHEB    nOCEBDIMGS    T 


TUIB  ClDSE. 


The  eouniel  for  Uie  defendant,  while  the 
jury  withdrew  to  cnoBider  ibeir  verdict,  tea- 
dcred  to  the  judge  mbiDtM  of  a  bill  of  excep- 
tjona  s  and  on  tlie  fourth  day  of  Klichaelmaa- 
term,  the  Coart  of  Comuion-PIeaa  waa  a»OTe<l 
Iw  a  new  trial. 

The  defendant'!  counael  made  hia  niotioD  od 
tvo  grouuU. 

First,  far  ezceu  of  damage* ;  alledgingthal 
iLe  jury  bad  proceeded  oo  a  inialalfe,  liir  they 
bad  found  that  ibe  plaintiff  was  noi  guilty  nl 
mutiny  or  sediliun  ;  whereoa  he  inuited  it  was 
IDotl  plain  from  the  wrilien  evidence,  that  the 

tlaintiff  had  endeafuured  ID  make  the  garrison 
elieve  that  be  was  their  friend. 

Secuodly,  that  a  new  trial  oaght  la  be 
granted,  because  Ibis  actioa  could  not  be  niain- 
taineil,  as  the  Court  had  no  juriadicliou. 

The  rule  to  ahew  cause  was,  of  course, 
granted. 

On  the  3Slh  of  November,  Mr.  Juat.  Gould 
r«|)orled  the  evidence,  which  agreed  with  tlie 
printed  trial.  On  the  46lh,  it  wu  tclemnly 
Ugued  on  the  Hrst  otyedion  of  exceis  uf  da- 
naKci,  ilie  Court  uot  permitting  Iho  defend- 
ant's couoael  lo  urgue  the  nemud  objection,  as 
ihey  said  il  would  be  introducing  a  new  mode 
of  practice,  which  might  e*eatnally  be  preju- 
dicial  lo  •ailor* ;  aud  ai  the  bill  of  exce|iliooa 
went  with  Iho  record  to  the  court  of  Kiug'a- 
beuch,  tbat  waa  the  proper  court  to  daiermine 
on  it. 

Lord  Chief  Jnitice  De  Grry  delirered  hii 
opinion  lu  the  following  purpon. 

I  have  always  considered  Ibia  node  of  ap- 
pHcation  for  a  new  IruU,  as  very  aaluury  to  the 
wtlor*.  who  may  be  injored  hy  mislako ;  and 
litawue  to  the  jury,  .»il  reftim.  Uwir  enoii, 


if  they  commit  any,  and  is  a  happy  subHitDlc 

for  the  much  more  grievnni  pnKvediug  tbat 

the  common  law   baa  directed.     With  regard 

to  the  interposiiiun  of  the  courts  nf  juiiice  on 

the  quantum  of  damages,  where  the  subject  of 

the  luit  ia  contract,  the  Court  hai  an  easy  ml* 

logo  by  in  rectifying  the  mistakea  uf  the  jury, 

because  there  is  a  certain  lest  and  ftaudard. 

As  liir  instance,  if  a  man  ihoald  bring  an  action 

'   "       lOOf ,  and  the  jury  should  give 

.,000/.    uoiter  the    idea  of   in- 

lereit,  they  would  gu  upon  a  mistaken  prin- 

certain  the  party  could  notnara 


dfi,, . 


injury  adequate  to  that  compruaa- 
tiiin :  the  damage*  would  be  excroaiTe,  imd  th* 
Court  would  correct  it.  But  in  peraonal 
wrongs,  it  is  much  mure  difficult  lo  draw  a 
line,  I  do  not  go  so  far  aa  lo  say,  ihat  in  per- 
sonal wronga  the  Court  will  never  iuierpoafc 
even  upoo  the  article  of  escemiTc  damage*,  if 
they  are  oulrageuua,  and  appear  so  to  ilie  Court; 
that  is,  aa  my  brother  Gould  expressed  it,  if  it 
apprari,  iu  giving  the  duniages,  that  the  jury 
did  uiil  act  will)  deliberation,  but  with  paasioii, 
partiality,  or  corruption.  As  <br  ioatauce,  if 
tiTO  ordinary  men  should  quarrel  at  an  al*> 
boi»e,  and  one  should  give  Ihe  other  a  fillip 
opon  the  nose,  and  1,(X)0/.  ahotild  be  gina 
for  dainageti,  which  is  ten  times  more  than 
bolh  the  parlies  are  worth,  such  damages 
iroiild  be  evidence  that  the  jury  had  not  acui 
wiih  the  deliberaiion  Ihat  the  administratioii  of 
justice  require*.  It  i*  a  peraonal  tori,  bolthc- 
damage*  are  excessive.  There  are  other  cir^ 
Gumatances,  where  lite  Conrt,  even  upon  ezcea* 
•i*e  damages,  might  interpose:  and  I  think 
the  couotel  lor  governor  Hoslyn  have  verj 
wisely  cndearourM  to  ground  ihemaelvea  tinoK 
such  a  principle  ID  this  cause;  which  is,  tut 
the  jury,  in  aaaeasin^  the  compenialion  fbr  tha 
injury,  have  proceeded  on  a  mistake.  It  it 
possible  tlml  to  many  instances  that  mistake 
may  arise  from  the  direction  of  the  Court ;  fbr 
the  Court  may  perhaps  direct  Ihe  jury  to  at 
tend  to  a  circumstauce,  that  in  point  of  law  ia 
not  prnved,  or  is  not  Ihe  subject-matter  for  their 
coosider.ll lull :  or  il  is  possible  that  Ihe  jury 
may  so  miilake  the  evidence,  aa  lo  believe  Ihe 
fact  to  betme,  when  it  isnotso:  then  it  cornea 
to  he  a  progier  motion  fir  a  new  tnal,  becauae 
the  verdict  is  contrary  to  evidence.  Or  tba 
jury  may  give  credit  \n  such  circnmstanceii, 
which  either  have  not  been  proved,  or  are  nK 
true,  and  they  may  ageravale  the  damagcy 
upon  lliat  account :  they  then  act  under  a  mia> 
take,  which  most  certainly  ought  lo  be  rectified. 
That  is  the  ground  upon  which  the  present  ap- 
idication  is  tnaile.  Bui  if  you  consider  it  u 
your  own  mind,  it  will  oecesaarity  result  to  thia 
propnsitioD,  that  the  jury  hare  Ibuod  a  fact 
contrary  lo  eiiilence.  As  my  brother  Davj 
u  aware  ihat  there  might  be  some  difficulty 
mamlaining  thai  proposiiinn,  he  put  it  ints 
BDOtber  shape,  and  aaid  it  was  a  circumstancs 
Ihat  was  proper  for  the  jury  to  consider  a*  a 
gronnd  for  mitigaling  the  damagea ;  inilead  of 
ahich,  they  bad  fron  Ihil  oiicunutuieo  >(■ 


177] 


Fabrigas  o.  Mostyiu 


A. ».  1775. 


[178 


fviTfttotf  the  damagM.    So  that,   upon  the 

wMe,  it  will  still  rfcar  to  the  same  propoti- 

tiM,  that  the  J  have  acted  upon  a  mistake,  in 

fifing  aari|^avatt*tl  damages  upon  a  fact,  which 

ihfy  hare  fooml  contrary  to  evidence.    For 

ftqr  were  ananimoasly  of  opinion,  that  what 

Ik  plaintiff  did,  was  not  done  with  any  sedi- 

iKm  vie^,  or  tending  thereto,  but  was  an 

flvaest  preasing  of  a  suit  to  be  relie?ed  from  a 

frievanee  supposed.    That  was  the  enquiry 

ttey  were  particularly  ordered  by  my  brother 

GsuM  to  make  ;  and  that  was  the  answer  that 

Ihcy  gave.     Now,  if  in  point  of  fact,  they  were 

m  mistaken,  as  that  they  ought  not  to  ha?e 

ken  of  opinion  that  the  plaintiff  did  not  act 

with  a  seditious  ?iew,  but  was  only  pressing 

kiportanately  a  suit  for  relief  from  a  supposed 

gnerance,  then  they  have  given  damages  upon 

a  fake  supposition ;  they  have  given  such  as 

ue  DOl  piroportionate  to  the*  injury  received. 

The  argament  then  seems  to  me  to  come  to 

this,  that  they  have  believed  a  fact  which  they 

aagbt  not  to  have  believed,  because  the  proof 

was  against  it.     We  are  therefore  to  consider, 

whether  the  damages  ought  to  have  been  raised 

ss  hiph  or  not.    And  there  are  two  cases  in- 

Mted  upon.    One  is  the  behaviour  of  Mr.  Fa- 

kigas,  as  tending  to  raise  disorder  and  sedition 

k  tbe  goreniment.    The  other  is  the  conduct 

af  |overoor  Mostyn,  in  extenuation  of  damages, 

is  acting  under  a  mistake,  and  having  taken 

Ae  best   adnce  the  nature  of  his  situation 

admit.    In  order  to  understand  this,  we 

for  a  moment  the  situation  the  go- 

vvMBeBt  stood  in. 

TUa  island  was  conquered  in  1708.  The 
nB|nererB  (no  matter  in  what  mode)  had 
•  i^|bl  to  impose  what  laws  they  pleased. 
^■Btbe  cession  of  the  island,  by  the  eleventh 
artide  of  the  treaty  of  Utrecht,  part  of  the  right 
if  the  conqueror  was  giren  up ;  for  it  is  stipu- 
falcd,  that  the  inhabitants  shall  enjoy  their 
bsBuurs,  estates,  and  religion.  So  far  there- 
Ike  the  right  of  the  conqueror  is  restrained ; 
bsl  with  regard  to  their  laws,  there  was  no 
MipolatioD,  nor  was  it  ever  understood  so  by 
Mwr  people.  It  is  well  known  that  the  earl 
if  Stanhope  and  the  duke  of  Argyle,  as  pleni- 
potentiarieii  upon  this  subject,  and  afterwards 
■y  lord  Boliogbroke,  did  assure  the  inhabi- 
tttls,  that  they  should  enjoy  their  own  rights 
ni  privileges,  still  subject  to  the  supreme  do- 
toiioo  of  the  conqueror.  Those  rights  and 
privileges  which  thev  were  to  enjoy,  were  the 
flSlabKshed  municipal  laws  of  the  island,  under 
soeh  regulations  as  the  legislature  of  this  conn- 
^  should  impose  upon  them.  This  assu- 
riBce,  made  at  that  time,  has  been  attended  to 
kr  government  ever  since ;  for  they  have  had 
m  enjoyment  of  their  privileges  so  assured  to 
Ibem,  and  have  had  such  regulations,  as  the 
gsvcrument  and  the  nature  of  iJTairs  have  from 
ttBc  to  time  required. 

The  king  in  council,  in  the  year  1752,  (upon 

wcral  complaints  having  been  made  a^inst 

fcacfml  Anstruther,  who  had  been  the  gover- 

isr)  made  tbe  regulation,  as  it  ia  called,  of 

VOL.  AX. 


1753  ;  by  which  the  king  in  council  intended 
to  provide  afifuinst  that  oppressive  power  of  the 
governor,  which  the  inhabitants  had  com- 
plained of,  and  that  the  people  of  the  island 
should  be  at  liberty  to  sell  their  wines  at  the 
price  fixed  by  the  jurats  of  (he  different  ter- 
minos.— -These  powers  were  soon  found,  or 
thought,  to  be  abused ;  which  occasioned  a 
representation  to  he  made  by  tbe  then  governor 
to  the  king  in  council,  which  produced  the  new 
regulation  of  1753,  which  leaned  on  the  other 
side,  as  the  natives  said  :  for  as  the  former  was 
supposed  to  give  too  much  power  to  the  magis- 
trates of  the  island,  making  them  independent 
of  the  governor ;  so  this  threw  too  much  power 
into  the  hands  of  the  governor,  and  laid  them 
too  much  at  his  mercy. 

There  is  one  thing  mentioned  in  my  brother 
Gould's  report,  which  I  think  proper  to  take 
notice  of,  because  it  should  not  be  so  mintaken. 
Oueof  the  witnesses  in  the  cauise  represented 
to  the  jury,  that  in  some  particular  cases,  espe- 
cially in  criminal  matters,  the  governor  resident 
upon  the  island  does  exercise  a  legislative 
power.*  It  was  gross  ignorance  in  that  person 
to  imagine  soch  a  thing.  1  may  say,  it  was 
impossible,  that  a  man  who  lived  upon  the 
island,  in  the  station  he  had  done,  should  not 
know  better,  than  to  think  that  the  governor 
had  a  civil  and  criminal  power  vested  in  him. 
In  the  island,  the  governor  is  the  king's  ser- 
vant :  his  commi^»ion  is  from  the  king,  and 
he  is  to  execute  the  power  he  is  invest^  with 
under  that  commission,  which  is  to  execute  the 
laws  of  Minorca  under  such  regulations  as  the 
king  shall  make  in  council.  How  does  it  stand 
after  the  conquest  of  this  island  in  1757,  by 
the  French,  and  the  relinquishment  of  it  upon 
the  peace?  When  general  Johnston  was  sent 
as  deputy -governor,  he  thought  fit  to  make  a 
new  regulation.  Now,  I  conceive,  it  was  a  vain 
iman^ination  in  the  witnesses  at  the  trial,  (for 
we  don't  want  to  go  to  Minorca  to  understand 
the  consitution  of  that  island)  it  therefore  was 
a  vain  imagination  in  the  witnesses  to  say,  that 
there  were  ^^e  terminos  in  the  island  of  Mi- 
norca. I  have  at  various  times  seen  a  multi- 
tude of  authentic  documents  and  papers  rela- 
tive to  that  island,  and  I  do  not  believe,  in  any 
one  of  them,  that  the  idea  of  the  arraval  of  St. 
Phillip's  being  a  distinct  jurisdiction  was  erer 
started.  Mahon  is  one  of  the  four  terminus: 
ISt.  Phillip's  and  all  the  district  about  it,  is  com- 
prehended within  the  termino  of  tl'Iahon.  But^ 
however,  as  it  happens  to  lie  near  the  glacis  of 
the  fortification,  and  the  governor's  power  (I 
don't  mean  his  legal  authority)  being  there 
greater  than  it  may  be  in  more  distant  parts  of 
the  island,  there  has  been  a  respect  shewn  him, 
a  decency  |>erhaps  to  the  governor,  which  has 
prevented  the  magistrates  interfering  without 
his  knowledge.  But  to  suppose  that  there  is  a 
distinct  jurisdiction,  separate  from  the  govern- 
ment of  the  island,  is  ridiculous  and  absurd  :  it 
is  what  1  never  did  hear  of,  till  it  was  men- 


N 


*  Vide  Mr.  Wright's  evidence,  ante. 


179J 


14  GEORGE  IIL 


Adionjor  Fabe  Impritmment-^ 


[180 


tiooed  in  my  brother  GouM's  report.  Geneial 
Johnston  made  an  alteration  in  the  arra? al  of 
St.  Phillip's,  which  is  a  district  of  a  luile  or  two 
in  circamference,  with  some  few  hundre<l  in- 
habitants. He  divided  this  into  a  subdivision 
of  four  other  districts,  and  annulled  by  his  own 
ttothority  the  regulation  of  1752,  respecting 
the  aiode  by  which  the  wines  were  to  be  sold. 
jia  far  as  appears  in  this  cause,  he  did  that 
without  authority.  If  he  had  the  sanction  of 
gofemment,  his  instructions  should  have  ap- 
peared, if  the  defendant  intended  to  a? ail  him- 
self of  them.  I  only  mean  to  be  understood, 
that  general  Johnston  had  no  authority  to  su- 
persede the  order  of  counsel  by  his  own  power ; 
out  at  the  same  time  it  seems  to  be  a  very  sa- 
lutary provision  ;  aud  if  he  had  represented  it 
to  tlie  lung  in  council,  no  doubt  but  it  would 
have  been  approved  of.  I  may  say  that 
the  inhabitants  approved  of  it,  because  from 
that  time  there  never  has  been  any  complaint 
of  it.  A  few  years  ago  there  were  a  multitude 
of  coiBplaints  brought  against  the  arbitrary 
acts,  as  they  were  called,  and  the  oppressive 
oonduct  of  this  very  general  Johnston.  They 
were  heard  in  a  full  coiuicil  with  a  great  deal 
of  solemnity  for  a  great  number  of  days, 
and  the  council  came  into  a  resolution  upon 
then.  This  alteration  of  the  order  in  1763 
'  was  not  one  of  their  charges  against  him  ; 
therefore  it  is  clear,  that  the  inbabilants  of 
the  arraval  did  sot  at  that  time  think  it  an 
oppression. 

We  come  now  to  the  point  of  time,  when 
Mr.  Fabrira  complained  of  it.  i  will  not 
condemn  him  for  referring  to  the  order  of 
council.  He  had  a  right  to  know  whether  this 
alteration  of  governor  Johnston  was  made  by 
authority,  and  whether  it  had  the  effect  of  the 
power  of  the  king  in  council ;  therefore  I  do 
not  condemn  the  thing  itself.  Mr.  Fabrigas 
not  having  met  wiih  that  success  which  he  ex- 
pected, (thouffh  governor  Mostyn,  1  think,  till 
the  time  of  the  arrest  and  commitment,  acted 
with  a  great  deal  of  caution,  judgment,  and 
prudence,  I  can  almost  say  impartiality)  and 
not  being  satisfied  with  the  opinion  of  the  go- 
vernor upon  the  representation  and  defence  of 
jlllimundo,  which  he  had  never  seen,  desires  to 
see  it.  His  petition  is  rejected.  This  produces 
a  peevish  application  again  and  again  to  the 
governor,  and  from  one  complaint  another 
arises.  New  grievances  are  supposed  to  be 
received,  not  f  nly  by  Mr.  Fabrigas,  but  by  the 
inhabitants  of  the  arraval  at  large :  and  1  can- 
not say  that  1  approve  of  the  manner  in  which 
he  did  prosecute  tiin  claim  :  the  effect  of  it  is 
another  thing  He  certainlj  did  not  obstrve 
that  decency  and  respect  to  the  (i^overnor  which 
he  oui;ht  to  have  done.  If  the  governor 
did  not  attend  to  bis  complaints,  the  kin^f  in 
council  was  open  to  him.  We  ail  know,  that 
the  way  to  the  king  in  council  has  been  pur- 
sued very  often,  where  the  governor  ban  not 
attended  to  the  complaints  of  the  Minorquins. 
Mm  expressions  indeed  have  ihe  appearance  of 
■ility  and  respect ;  but  yet  ihvro  is  a  petu- 


lance in  the  continuing  his  petitions,  which 
n\\g\ki  disturb  the  governor.    Thus  the  matter 
goes  on  ;  this  man  still  complaining,  and  ear« 
nestly  pressing  of  his  suit  upon  a  grievanco 
supposed,  till  the  secretary  informed  the  go- 
vernor, that  the  plaintiff  would  come  next  day 
with  his  petition  backed  with  160  of  the  dealers 
in  grapes  and  wine.    This  it  is  that  is  supposed 
to  alarm  the  governor.     Now  1  will  not  reflect 
so  much  upon  the  honour  of  any  governor  of 
the  garrison  of  fort  St  Phillip's,  as  to  suppose, 
that  he  really  tliought  his  garrison  was  m  any 
more  danger  than  this  court  is  at  the  present 
moment;  nor  will  I  suppose,  that  if  he  did 
think  his  garrison  was  in  danger,  that  he  would 
have  taken  such  feeble  means  to  defend  it. 
The  governor  was  disconcerted  by  the  petu- 
lance of  the  man,  and  was  off  his  guard ;  and 
though  he  took  the  advice  of  those  who  were 
the  proper  persons  to  advise  him  there,  yet  bo 
must  have  too  much  sense  to  imagine,  that  tho 
advice  they  gave  him  was  sucli  as  he  could 
either  in  law  or  reason  follow.      I  aai  not 
speaking  now  of  the  law  of  this  island ;  but 
it   is  totally  contrary  to  all  principles,    and 
to    every   idea   of  justice   in   any   country. 
But  the  next  day,  this  petition  is  presented 
by  four  men  only.      Then  there  is  an  end 
of  all  danger  to  the  garrison  and  the  govern- 
meot ;  and  you  plainly  see  no  disturbance  was 
meant;  nor  is  there  any  evidence  of  hiasolicit- 
ing  the  people,  of  his  breeding  cabals  among 
them,  or  exciting  any  tumult  or  disorder.   Tho 
plaintiff  had,  to  say  the  worst,  only  behaved 
nimself  ill  in  the  mode  of  his  importunity  ;  and 
when  he  was  open  to  the  laws  of  that  country 
(for  such  laws  I  presume  there  mtist  be)  if  m 
had  offended,  he  might  have  been  prosecuted 
in  the  courts  of  criminal  jurisdiction.  Whether 
he  acted  improperly,  from  not  having  suc- 
ceeded in  prevailing  upon  the  majority  of  tho 
people  to  think  he  was  ri^ht  in  desiring  to  in- 
force  the  order  of  1752,  is  not  the  question: 
the  people  seemed  to  be  content  with  tue  varia- 
tion, or  deviation,  made  by  general  Johnston* 
Now  when  all  these  matters  are  over,  this  man 
is  committed  to  prison  ;  and  there  is  the  first 
complaint :  and  I  must  toke  it  upon  this  mo- 
tion, that  it  was  a  false  imprisonment.    If  tho 
governor  had  secured   him,  nay,  if  he  had 
barely  committed  him,  that  he  micht  have  been 
amenable  to  justice;  an'd  if  he  had  immediately 
ordered  a  prosecution  tipon  any  part  of  his  con- 
duct ;  it  would  have  been  another  question,  and 
might  have  received  a  different  consideration. 
But  he  commits  him  to  the  worst  prison  in  tho 
island  ;  and  in  a  way  which  I  cannot  conceive 
came  from  general  Mostyn.     What  could  in- 
duce him  to  use  a  man  Mith  such  hardship  and 
inhumanity  P  Was  not  putting  him  into  prison 
sufficient?  Why  i«as  he  to  he  deprived  of  tho 
society  of  his  wife  and  children,  without  being 
allowed  any  thing  for  bis  sustenance  but  bread 
and  uater,  and  to  lie  upon  the  floor  P  In  this 
condition  he  remains  for  six  days :  then  comon 
a  ftec«>nd  impriKooment ;  for  1  take  the  whole 
year  to  be  a  cuntiututtion  of  the  fidse  imprisoBr 


Tahrigat  v,  Mailt/n, 

Hb  ta  lh#D  COnftneil  im  Uianl  a  aliip,  . 
r  ibr  iitn  nf  r  hmiinlimfnl  in  t'ar(hiii;eDii. 
r.  MnsTvn  wan  teil  ii>ii>  lliia.  iin- 
■  IbatiU  pncltcwuf  iheUlanil  tfl'Miiiorcn,  b; 
«Akh  ii  wu  tinual  to  Imnish  -  I  giiiiposp  ihe 
lU  HfDi)n|iim*  ibnuubl  fit  t»  iilviw  linn  lo  tliii 
wmmitr.  But  ibt-  ^trninr  Umw  th*i  lie  could 
Nnwf  imnrtsnn  him  for  «  iwelvemfinlh,  than 
tabeoBuU  inflici  lliulorlure;  yet  the  liir-  ' 
toe,  u  xpI)  an  haniiilinicnt,  tma  iliV  nIH  taw  nf 
HiMwrm,  whirh  fell  of  cnurip  wlirn  il  came 
itia  nor  {Ht^*iinii>n.  Eriry  BiiLrliiih  |[o»ernor  j 
kww  bf  coiilil  nnt  inflirt  tlic  toriure ;  ilie  eoD- 
ntiiiion  of  (bin  couniry  jiiit  nn  end  Id  lliat  idea.  . 
•n  - .  ..    II  ilrBg(f(s(nn  boinl  ■  Blii|i,  »ilb 

~~i  nf  inliiimanily  and  liaril-  I 
•  I  cmiiiai  iwlifce  of  i;Fneral  Moitvn  ;  ' 
beamed  inloafuiviun  enunlry,  anil  of 
i  for  I  belieie  there  are  , 
r-rfHMM  ipirn,  ibnt  no  peraoiis  ihould  an  lo  ' 
>^n,  ar  l>«  iiermilied  lo  qoit  ihe  pnri  nf  Car-  ' 
*yi.     All  liiR  mntiniKiiice  In  Spain,  I  Ionic 

CM  ■  «Duliiiuance  of  llie  falie  imprison- 
{  faaeauae  e>ery  cnnatraint  upon  nenonal 
Smj,  wilboul  leK^I  aulliurjiy,  ii  a  lalae  ioi- 
OlMit;  ami  il  a  nptain  leaies  a  sailor 
1  ilr<rrt  iKland,  tlioiigli  he  is  lell  al  liberty 
■,  trt  Ibe  keeplntj:  !'■■>■  from,  that  place  lo 
'■  be  bad  a  right  by  law  to  cociie.  Ii  an 


A.  D.  1779. 
years.  The  Court  was  applied  lo  for  ■  new 
■Hal,  upon  rxc-Biire  damsgcB.  Wliol  did  iba 
Cnuii  say?  (and  I  neier  be«nl  llieir  JiidEineiit 
in  Ibnt  rnatler  arraigned)  '*  We  are  noi  ilie  JD- 
diciitiirc  lu  delerniine  upon  the  deliberate  judj^ 
Jury,   iipnn  aurh  a  aiibjecl  as  Ihit. 


kHfiaaiUnes 
Irii|WD   r 


I  proper  cailae  the  ciiDfta  nf  jiiRlice 
men  ■aii  is  a  judicial  way  eiercined  any  power 
«bicb  tiMiir  Uwa  wnutd  hate  snppDrteit,  and 
■MHl  llir  tax*  nFUli*  oountry  nu|{lit  not,  what 
Ikceffrctof  that  wniild  have  becu  has  nolliin^ 
M  ilu  OTib  ibii  oauie ;  for  nuw  we  take  it  upon 
te  KPneral  Imuc,  Not  Ouilly.  In  thia  case. 
A*  niD  ha*  been  impritoned  under  circum- 
flneaa  »f  ifreiit  harditiip  for  Iwelre  niontha, 
■rfkefi  rramlheRammdnicaliat)  nfbia  family 
mt  km  own  cuDcema.  lu  this  lituaiino  be 
blag*  tm  aOiun ;  «ud  Ihe  Jury  huvu  tbnii||;hl 
•ilai^r3,0<io/.ilaDiagF«.  ToIm sura,  {1,000/. 
baa  unmenite lum  foraMinorquin  to  recoter : 
■y  brMber  Da*y  Ibouijhl  proper  In  une  the 
ttyaaaiim  "f  (U  ueia\g  an  imtra^eoii»  aiiin.  To 
«fi*ha(  ■■  ibr  talueafllM  liberty  nf  a  man'* 
fnaiiu.aeclnded  from  hia  braily.  under  circum- 
■UMvurhaidibip,  fur  Iweire  inonlbi,  ia  a  (tiffi- 
aill  inaltvr.  Men'a  minla  will  vary  tnucb  about 
it:  I  alimiUI  ibiok  one  tbinft,  another  would 
Ihink  ■mlha.  lu  tl>i<  cbm  of  penonnl  wrontfii. 
aha*  Im*  Ibe  law  aaid  ?  The  law  ban  naiJ,  Ihal 
^fary  of  IHalle  men  iball  he  llie  jnil^ea  lo  de- 
itrmtttt  aiHl  avea*  tbe  comiiensaiinii  for  Ihat 
^— pal  «ra<i|[.  \\  e  cannul  but  rei-ollrcl  what 
pM*rd  ia  ih-a*  iinfurlimaiF  affair*  ibal  tiap|>#n- 
alatout  <lir  wcrclary  of  uste  and  a  |irlnier'a 
bi].  A  ■•■rtaai  ia  taken  itp  under  a  mltiake, 
Ml  earri'it  l><  a  brlUr  tluiue  llian  liis  own,  la 
M  »>ib  Uirri  |>i..v.<iiuiH  llian  he  had  of  hia 
Dak.   ao'l  ••  t.rdii-il  briirr  Ihan  he  wnuld  have 


Hove  Ibejury  eacrclspd  their  jiid:jti 
there  any  iinpntaiion  upon  their  mnduct  ex- 
cept Ihp  Idea  nf  Ihe  comppnaation  not  being 
pro|inrtiuneil  ?  Not  at  nil."  Hov,  can  a  court 
of  justice,  thai  i*  to  determine  npnn  Uw,  set  a 
value  upon  tliii,  and  lay,  it  ia  wntngfF  What 
woiild  be  llie  onaeqiience  ofil?  If  we  say  tliii 
ia  nmng,  we  niuct  ^ay  irhal  la  righu  Then 
t*e  are  lo  tell  the  jury,  "  You  are  not  tn  Gnd 
S.OOD;."  ■■  Mb]  we  find  3,000/  1,000/,  500 (. 
or  100/.  r  Tell  ua  wliere  you  tblnk  we  ahould 
herlijlit?"  "We  muMnnl  lellyon;  we  bar* 
no  authority  to  do  that ;  liul  you  itiual  oot  gite 
oulrageoua  ilamaifes."  I'W  tliiiugh  1  may 
know  in  my  own  mind  whereaboulu  I  abould 
compeimta  the  Injurv,  wilhoiilBByinK  wbelher 
it  would  he  more  or  fesa  tbui  tbis,  yet  I  caiinol 
pretcribe  tn  the  jury  what  I  think  the  value  of 
perBonal  liberty.  But  il  is  aald,  that  tbe  go- 
Temordid  what  he  uould  in  hi«  ailualion ;  but 
wsa   miataben.     If'  be  wni  miniaken,  it  ia  a 


il  was  preasFd  belbte  the  jury,  and  they  paid 
Gucb  attention  to  it  a«  lliey  thouglit  proper; 
and  Iheretbre  It  would  be  totally  evoking  the 
cause  from  ita  pro|ier  determinalion  lo  say,  that 
ifaejury  ought  lu  give  some  other  damsgea  thau 
ttiey  hate.  Aa  lo  the  ground  on  which  the 
defvudani'a  counEel  have  made  this  moiinii,  it 
arisea  frooi  an  accident,  and  I  ihink  au  acci- 
dint  which  was  very  properly  protlded  for; 
for  bad  it  not  been,  thai  the  learned  judge  who 
tried  the  cause  had  patticularly  in  lermi  recotn- 
meaded  the  cnnsiderslion  ot'  (his  point  to  lbs 
jury,  and  taken  their  answer,  the  defendant 
could  not  hate  had  any  ground  lo  apjily  for  a 
new  trial.  In  my  opluion,  the  learned  judge 
did  tery  right,  and  acted  with  great  prudence 
and  justice  to  the  parties,  and  tu  the  future 
questions  that  may  arise  in  Ihiacauae;  tiir  it 
liiuks  aa  if  Ihe  parlies  from  the  beginning  in- 
tended tn  apply  either  hare  nr  elsewhere.  Now 
il  ia  a  terv  ditferent  question,  whstber  the  go- 
vernor of"^  Minorca,  finding  a  subject  mutinoiii 
and  seditious,  and  disiurbiog  his  ((overninent, 
can  ari-esi  and  imprison  him?  or,  whether  he 
can  justify  whut  be  has  done,  the  jury  baling 
found  thai  he  was  iieillivr  inulinous  nor  aedi> 
liousf  Had  they  fomtd  the  contrary,  ihatfact 
tiiight  have  been  taken  inio  cunslderaliun  in  a 
euuri  of  JQBtice ;  bui  as  ibcy  liate  exercised 
thai  jurisdiction  thecontliiutlon  has  given  ihetn, 
I  ililiik  there  aught  not  lo  be  a  new  trial. 

nir.  Just.  Guufdwd,  Ihat  the  Court  was  not 
wariMiiied  in  deirrinuilug  thai  ihe  damagea 
ne>e  exresaive,  wiiliout  bieakliig  in  upon  the 
fundumenial  principles  of  the  conaliiuUon. 

Hr.  Just.  BlaiktCoae  observed,  that  these 
(laiuagea  goqU  uui  he  called  angry  or  tiadialiv* 


I8S] 


H  GEORGE  III. 


Actitmjor  Fake  Imprhonment'^ 


[tSft 


Otroages,  as  the  injury  was  at  ontrtgeous  as 
the  dama^ret  could  l>e  ejccetsive. 

Mr.  Just.  Narfs  declared,  that  Mr.  Fabrigfat 
had  been  impriRoued  and  treated  in  such  a 
manner  ihat  he  did  not  care  to  repeat. 

The  whole  bench  were  unanimous  in  refuvin^ 
a  new  trial,  and  the  rule  wai  consequently  dis- 
cbarj^ed. 

Farther  Proceedings  in  the  Cause  of  Fa- 
brigas  and  mosttn. 

The  Court  of  Common  Pleas  ha? ingf  refused 
governor  Mostyn  a  new  trial,  be  reported  to  a 
Writ  of  Error,  which  was  allowed  on  the  14tb 
of  December  1773. 

On  the  16th  of  December  he  was  obUged  to 
put  in  bail. 

A  rule  was  ii^iFen  to  transcribe  the  record  in 
Hilary  term,  1774. 

The  first  Scire  Facias  issued  in  Easter 
term. 

The  second  Scire  Facias  issued  in  the  same 
term,  on  the  16tb  of  May,  returnable  in  Tri- 
mtv-terro. 

Mr.  Fabrigas,  the  defendant  in  error,  was 
•erfed  with  a  summons  on  the  7th  of  June, 
that  the  plaintiff  mi|y|^ht  have  time  to  assi^ 
errors  till  judge  Gould  had  put  his  seal  to  £e 
bill  of  exceptions. 

On  the  8(b  of  June,  judge  Gould  came  into 
the  court  of  King's- bench,  and  acknowWd^fed 
bis  seal.— The  errors  were  assigned  on  the  16th 
of  June.  The  defendant  pleaded  in  nulla  est 
erratum  on  the  30th. — A  Concilium  was  moved 
for  on  the  31st  of  June. — It  was  set  down  for 
argument  for  the  first  Friday  in  Michaelmas 
term. 

It  was  argued  on  Tuesday  the  15tb  of  No- 
vember 1774 ;  and  the  record  is  as  follows  : 

*'  The  Record  of  the  Proceedings  in  Fabrigas 

and  Mostyn. 

«  The  Writ  of  Error. 

'*  As  yet  of  Trinity-term,  in  the  14th  year 
of  tlie  reigu  of  king  Geoiige  the  third. 

■*'  Our  lord  the  king  sent  to  his  trusty  and 
well- beloved  sir  William  de  Grey,  knight,  hii^ 
chief  justice  of  the  bench,  his  close  writ,  in 
these  words  ;  that  is  to  say :  George  the  third, 
by  the  grace  of  Go<l,  of  Great  Britain,  France, 
and  Ireland,  king, '-defender  of  the  faith,  &c. 
To  oar  trusty  and  well- beloved  sir  William  de 
.Grey,  knight,  our  chief  justice  of  the  bench, 
greeting. .  Forasmuch  as  in  the  record  and 
prooesA,  as  also  in  giving  of  jud^'ment  in  a 
plaint  which  was  in  enr  court  before  you  and 
youp  associates,  our  Juittioes  of  the  bench,  by 
our  writ  lietween  Anthony  Fabrit^s  and  John 
Mostyn,  esq  of  a  plea  ot  trenpass,  assault,  and 
iilittimpri^nment,  as  it  m  said,  manifest  error 
bath  intervened,  to  the  great  damage  of  the 
•aid  John,  as  by  hiscomplaiut  we  are  informed : 
we,  willing  that  the  said  error  (if  any  be)  be 
doly  amended,  and  full  and  speedy  justice  done 
to  the  aaid  parties  in  this  befaalfi  do  comnHmd 


you,  that  if  judgment  lie  given  therenpon,  then 
you  send  to  us  distinctly  and  plainly,  under 
your  seal,  the  record  and  process  of  the  said 
plaint,  and  a41  things  toucning  the  same  and 
this  writ ;  so  that  we  may  have  them  in  fifleea 
days  of  St.  Hilary,  wheresoever  we  shall  than 
be  iu  England  ;  that  inspecting  the  record  aad 
process  aforesaid,  we  may  cause  further  to  km 
done  thereupon  for  amending  the  said  error,  •• 
of  right,  and  according  to  the  law  and  custooa 
of  England,  shall  be  meet  to  be  done.  WitneM 
oorself  at  Westminster,  the  6th  day  of  De- 
cember, in  the  14tb  year  of  our  reign,  Hil.  A.  L, 

"  The  Return  to  the  Writ. 

"  The  Answer  of  sir  William  de  Grayi 
knight,  chief  justice  within  named. — The  re* 
curd  and  process  of  the  plaint  within  nnentionods 
with  all  tnings  touching  the  same,  I  send  be* 
fore  our  lord  the  king,  wheresoever,  &c.  at  a 
day  within  contained,  in  a  certain  record  to  tbe 
writ  annexed,  as  I  am  within  commanded, 
5ec.  WnxiAM  de  Grey. 

*'  Pleas.  Inrolled  at  Westminster  before  air 
William  de  Grey,  knight,  and  his  brethren, 
justices  of  bis  majesty's  court  of  GomoMa 
Bench,  of  Easter- term,  in  the  19th  year  of  the 
reign  of  our  sovereign  lord  George  the  third, 
by  the  grace  of  God,  of  Great  Britain,  FranoOi 
and  Ireland,  king,  d^^fender  of  the  faith,  and  le 
forth.    Rolls  616  and  617. 

"The  Declaration. 

**  In  the  Common  Pleas.  London  to  «ril, 
John  Mottyn,  late  of  Westminster,  in  the  oount^f 
of  Middlesex,  esquire,  was  attached  to  answer 
Anthony  Fabrigas  of  a  plea,  wherefore  be 
with  force  and  arms  made  an  assault  upoe  tlw 
said  Anthony  at  Minorca,  (to  wit)  at  Londett 
aforesaid,  in  the  parish  of  Saint  Mary-le-Bew^ 
in  the  ward  of  Cheap,  and  beat,  wonnded,  aed 
ill-treated  him,  and  there  imprisoned  him,  aod 
kept  and  detained  him  in  prison  there  for  e 
long  time  without  any  reasonable  or  probable 
cause,  contrary  to  the  laws  and  customs  ef 
this  realm,  against  the  will  of  the  said  Anthony, 
and  compellml  the  said  Anthony  to  dejiart  freei 
and  leave  Minorca  aforesaid,  where  the  nid 
Anthony  was  dwelling  and  resident,  and  carriid 
and  caused  to  be  carried  the  said  Anthony  frea 
Minorca  aforesaid,  to  Carthagena  in  the  domi- 
nions of  the  king  of  Spain,  against  the  will  ef 
the  said  Anthony  ;  whereby  the  said  Anthony 
was  put  to  great  expence  and  trouble,  and  tbe 
goods  and  effects  of  the  said  Anthony  tliewi 
were  diminished,  lost,  spoiled,  and  consumed, 
and  the  family  of  the  said  Anthony  were 
brought  to  great  want  and  distress,  and  tbe 
said  Anthony,  during  all  the  said  time,  wee 
thereby  deprived  of  the  c«imfert  of  his  aaid 
family  :  and  also  wherefore  the  said  Johu  witb 
force  and  arms  made  another  assault  upon  the 
said  Anthony  at  Minorca,  (to  wit)  at  Ltondott 
aforesaid,  in  tlie  pari*ih  and  ward  aforesaid,  aed 
beat,  woended,  and  ill-treated  him,  and  ilwrne 
imprisoned  him,  aod  kept  and  detained  hint 
there  in  priteii  for  e  long  timt^  withoet  any 


185]   '  Fabrigas  o.  Moityn. 

NMooiMc  or  probable  caiMe,  cootrary  to  tho 
kvo  oo4l  ooaioont  of  tbii  realoi,  id^iiMfc  the 
vill  of  the  md  Aoihoo  j ;  and  did  other  wroo^v 
tihiiD,  to  the  ^reat  daniai^  of  the  iaid  Au- 
^^mj^  and  against  the  peace  of  our  lord  the 
■lokiiig:  and  thereupon  the  said  Anthony, 
^Richard  Gregory,  his  attorney,  complains, 
Ml  the  aaid  John,  on  the  first  day  of  Septeni- 
kr,  IB  the  year  of  our  Lord  177 1,  with  force 
•ad  anus,  (to  wit)  with  swords,  sta? es,  sticks, 
•ad  fislOy  made  an  assault  upon  the  said  Ao- 
dHsy,  at  Minorca,  (\o  wit)  at  lx»ndon  aforesaid, 
■  mt  parish  of  Ht.  Mary -le- Bow,  in  the  ward 
sf  Cbeaf  y  and  beat,  wounded,  and  ill- treated 
Msi,  and  then  and  there  imprisoned  him,  and 
bpt  and  detained  him  in  prison  there  for  a  long 
(to  wit)  for  the  space  of  ten  months,  with* 


•at  aoT  reaaoaabte  or  probable  cause,  contrary 
Is  iha  laws  and  customs  of  this  realm,  against 
db  will  aC  the  said  Anthony,  and  compelled 
'^~  '^  Anthony  to  depart  from  and  leave 
iforesald,  where  the  said  Anthony  was 
dvrelliog  aod  resident,  and  carried  and 
to  he  carried  the  said  Anthony  from 
aforesaid  to  Carthsgena,  in  the  do- 
«f  the  king  of  Spain,  against  the  will 
■f  the  aaid  Anthony ;  whereby  the  said  An- 
I  then  and  there  put  to  great  expenoe 
trovhie,  and  the  goods  and  effects  of  the 
Anthony  there  were  diminished,  lost, 
apoiM  and  consumed,-  and  the  family  of  the 
Anthony  were  thereby  brought  to  great 
and  distress,  and  the  said  Anthony  during 
tfaa  aaid  time  was  deprived  of  the  comfort  of 
aaid  family  ;  and  also,  for  that  the  said 
•o  the  said  first  dav  of  September,  in  the 
aComr  Lord  1771  aforesaid,  with  force  and 
(to  wit)  with  swords,  staves,  sticks,  and 
BMule  another  assault  upon  the  said  An- 
,  at  Minorca,  (to  wit)  at  London  afore- 
/in  the  parish  and  ward  aforesaid,  and  then 
there  beat,  wounded,  and  ill-treated  him, 
then  and  there  iuiprisoned  him,  and  kept 
detained  him  there  in  prison  for  a  long 
>,  (to  wit)  for  the  space  of  other  ten  months, 
any  reasonable  or  probable  cause, 
to  the  laws  and  custonns  of  this/ealm, 
apiDst  the  will  of  the  said  Anthony ;  and 
thm  and  there  did  other  wrongs  to  him  the 
■id  Autliooy,  to  the  great  damage  of  the  said 
Aalhoay ,  and  against  the  peace  of  our  said  lord 
kin|f:  and  thereupon  the  said  Anthony 
that  he  is  injured  and  hath  sustained 
to  the  value  of  19,000/.  And  thereof 
hehringvth  suit,  &c. 

"  The  Plea* 

**  And  the  said  John,  by  James  Da^e^  his 
mamey,  comei  and  defends  the  force  and  in- 
jary,  and  says  he  is  n(»t'guitty  of  the  premises 
above  laid  to  his  charge  in  manner  and  form  as 
the  aaid  Anthony  hath  above  complaineil  there- 
•f  against  him ;  and  of  this  he  puts  himself 
apan  the  country,  &c.  and  the  said  Anthony 
dstb  ao  Kkewiiie.  And  for  further  plea  in  this 
bthalf  as  to  the  making  the  said  assault  upon 
^  nid  Aathooy  in  the  firat  count  in  the  said 


A.  D.  177S.  [186 

declaration  mentioned,  and  beating  and  ilU 
treating  him,  and  imprisoning  him,  and  keep-* 
iog  and  detaining  him  in  prison  for  the  aaid 
space  of  time  in  tlie  said  declaration  mentioned^ 
sitid  compelling  the  said  Anthony  to  depart 
from  and  leave  Minorca  aforesaid,  and  carry- 
ing and  causing  to  be  carried  the  said  Anthony 
from  Alioorca  aforesaid  to  Carthagena,  in  tba 
fiomiuion^  of  the  king  of  Spain,  by  the  said 
Johu  al)ove  supuosed  to  have  been  done ;  he 
the  said  John,  by  leave  of  the  court  here  for 
this  purpose  first  had  and  obtained,  according 
to  the  form  of  the  atatute  in  that  case  mmim 
and  profided,  says,  that  the  aaid  Anthony 
ought  not  to  have  or  maintain  his  said  action 
thereof  againat  him  the  said  John,  becauae  ha 
says  that  he  the  said  John,  at  the  said  tima, 
&c.  aod  long  before,  was  governor  of  the  said 
island  of  Minorca,  and  during  all  that  time  was 
invested  with  and  did  hold  and  exercise  all  tba 
powers,  privile^,  and  authorities,  civil  and 
military,  uetonging  and  relating  to  the  go? em- 
ment  of  the  said  island  of  Minorca,  in  parts  be- 
yond the  seas;  and  the  said  Anthony  before 
the  said  time  when,  &c.  (to  wit)  on  the  said  lat 
day  of  September,  in  the  year  aforesaid,  at  tba 
said  island  of  Minorca  aforesaid,  was  guilty  of 
a  riot  and  disturbance  of  the  peace,  order,  and 
government  of  the  said  island,  aod  was  endea- 
vouring to  create  and  raise  a  mutiny  and  sedi* 
tion  among  the  inhabitants  of  the  said  island^ 
in  breach  of  the  peace,  violation  of  the  lawa» 
and  in  subversion  of  all  order  and  government ; 
whereupon  the  said  John,  so  being  goverdor  of 
the  said  island  of  Minorca  as  aforeaaid,  at  tba 
said  time  when,  &c.  in  order  to  preserve  tba 
peace  and  government  of  the  said  island,  was 
obliged,  and  did  then  and  there  order  the  said 
Anthoiiy  to  be  banished  from  the  said  island  of 
Minorca,  and  to  leave  aod  quit  the  said  island. 
And  in  order  to  banish  and  send  the  said  An- 
thony from  and  out  of  the  said  island,  did  then 
and  there  for  that  purpose  gently  lay  hands 
upon  the  said  Anthony,  and  did  then  and  thera 
seize  and  arrest  him,  and  did  keep  and  detain 
the  said  Anthony,  before  lie  could  be  banished 
and  sent  from  out  of  the  said  island,  for  a  short 
space  of  time,  (to  wit)  for  the  space  of  six  tiays 
then  next  following ;  and  afterwards,  to  wit, 
on  the  7th  day  of  Sf  ptemlier,  in  the  year  af<ira- 
said,  at  Minorca  aforesaid,  did  carry  and  causa 
to  be  carried  the  said  Anthony,  on  board  a  cer- 
tain vessel,  from  the  island  of  Minorca  afore- 
said to  Carthat^ena  aforesai<l,  as  it  was  bwful 
fur  him  to  do  for  the  cause  aforesaid,  which  ara 
the  same,  making  the  said  assault  upon  tha 
said  Anthony  in  tht*  first  count  of  the  said  de- 
claration mentioned,  and  beating  and  ih-treat- 
ing  him,  and  imprisfoning  him,  and  keeping 
and  detaining  him  in  prison  for  the  said  space 
of  titnc  in  the  said  first  count  of  the  said  decla- 
ration mentioned,  and  compelling  the  said  An- 
thony to  depart  fri»m  and  leave  Minorca  afore- 
said, and  carrying  and  causing  to  be  carried 
the  aaid  Anthony  from  Minorca  to  Gartbagena, 
in  the  dominions  of  the  king  of  Spain,  %^  hereof 
the  said  Anthony  hath  aboveeomplaiut  J  against 


187J 


14  GEORGE  III. 


Action  Jor  False  Imprisonment'-' 


[1S8 


him:  and  this  he  is  retdj  to  ferify.  Where- 
ibre  he  preys  juilgmeot  it'  the  said  Anthony 
ought  to  have  or  maintain  his  said  action  there- 
of againxt  him,  5ec.  without  this  that  the  said 
John  was  guilty  of  the  said  trespass,  assault, 
and  imprisoninent,  at  the  parish  of  St.  Mary  le 
Bow,  in  the  ward  of  Cheap,  or  elsewhere  out  of 
the  said  island  of  Minorca  aforesaid. 

'*  Thomas  Walker. 

*<  The  Replication. 

**  And  the  said  Anthony,  as  to  the  said  plea  of 
him  the  said  Juhu,  by  him  secondly  above 
pleaded  in  bar,  as  to  the  said  assaulting  the 
nid  Anthony  in  the  said  first  count  of  the  said 
declaration  mentioned,  and  beating  and  ill- 
treatiutf  him,  and  imprisoning  him,  and  keep- 
ing and  detaining  him  in  prison  for  the  said 
apace  of  time  in  the  said  declaration  mentioned, 
and  cump«*Uing  the  said  Anthony  to  depart 
IVom  and  leave  Minorca  aforesaid,  and  carry- 
ing ami  causing  to  be  carried  the  said  Anthony 
from  Minorca  aforesaid  lo  Carthagena,  in  the 
dominions  of  the  king  of  S|uiin,  by  the  said 
John  above  done,  protesting  that  the  said  plea, 
and  tiie  roattera  therein  contained  are  insuffi- 
cient in  law  to  bar  the  said  Anthonv  from 
maintaining  his  said  action  against  the  said 
John.  For  replication  in  this  ^half,  he  saith, 
that  the  said  Anthony  ought  not,  bv  reason  of 
any  thin^  bv  the  said  John  above  in  pleading 
alleged,  to  be  barred  from  havini^  his  said  ac- 
tion thereof  maintained  against  him  ;  becanse, 
he  saith,  that  the  said  John,  of  his  own  wrong, 
and  without  atich  cause  as  the  said  John  hath 
above  in  his  said  plea  alleged,  on  the  same  day 
and  year  aforesaid,  at  London  aforesaid,  in  the 
parish  and  ward  aforesaid,  assaulted  the  said 
Anthony,  and  beat  and  ill-treated  hiin,ttnd  im- 
prisoned him,  and  kept  and  detained  him  in 
prison  for  the  said  space  of  time  in  the  said  de- 
claration mentioned,  and  compelIe<l  the  said 
Anthony  to  depart  from  and  leave  Minorca 
aforesaid,  and  carried  and  caused  to  be  carried 
the  said  Anihony  from  Minorca  aforesaid  to 
Carthagena,  in  the  dominions  of  the  king  of 
Spain  aforesaid,  in  manner  and  form  as  the 
said  Anthony  hath  above  complained  against 
him ;  and  this  he  prays  may  be  enquired  of  by 
the  country.  And  the  said  John  doth  so 
likewise.  John  Glynn. 

"  Award  of  the  Venire. 

**  Therefore,  as  well  to  try  this  issue  as  the 
said  other  issue  between  the  said  parties  above 
joined,  it  is  commanded  to  the  sheriffs,  that 
they  caiibe  to  come  here,  in  three  weeks  of  the 
Holy  Trinity,  twelve,  &c.  by  w  hom,  &c.  and 
who  neither,  &c.  to  recognize,  Sec.  because  as 
well,  ^c. 

"  At  which  day  the  jury  between  the  said 
parties  of  the  plea  aforesaid,  was  respited  here 
.until  on  the  morrow  of  All  Souls  then  next 
following,  unless  sir  Henry  Gould,  kni^h  ,  one 
of  the  king*K  juHtices  of  the  bench  here  as- 
■igned  by  rorm  of  the  statute,  &c.  should  first 
eooei  00  Fndaj  the  Sod  of  July  last  pest|  ai 


the  Guildhtill  of  the  city  of  Loodoo.  And 
ROW  here  at  this  day  cometh  the  said  Anthony^ 
by  his  said  attorney,  and  the  said  justice,  before 
whom,  dkc.  hath  sent  here  his  record  io  thcae 
words. 


«( 


The  Postea. 


**  That  is  to  say,  afterwards,  on  the  day  and 
in  the  year,  and  at  the  place  within- raentiondly 
come  as  well  the  within- mentioned  Anthony 
Fabrigas  as  the  within-named  John  Mostyn,  by 
their  attornies  within-named,  before  sir  Hearv 
Gould,  knight,  one  of  the  justices  of  the  benco 
within- named,  and  certain  of  the  jurori, 
whereof  mention  is  within  made,  summoned  to 
be  upon  that  jury,  (that  is  to  say)  Thomas 
Zachary,  Thomas  Ashby,  David  Powell,  and 
Walter  Ewer,  being  required,  come,  and  od 
that  jury  are  sworn ;  and  becanse  tlie  rest  of 
the  jurora  of  the  same  jury  do  not  appear,  there* 
fore  eight  other  peraons  of  the  by-standcre, 
being  by  the  sherifls  within-written  hereuolo 
elected,  at  the  request  of  the  said  Anthony,  ami 
by  the  command  of  the  said  sir  Henry  Ooald, 
are  now  newly  set  down,  whose  nanotes  are 
affiled  in  the  within-written  pannd,  according 
to  the  form  of  the  statute,  &c.  which  said 
jun>ra  so  newly  set  down,  (that  is  to  say)  Wil- 
liam Tomkyn,  Gilbert  Howard,  Thomas  Boal- 
by,  and  John  Newhall,  John  King,  Jaaaea 
Smith,  William  Hurley,  and  James  Selby, 
being  also  required,  come  likewise,  and,  toge» 
ther  with  the  said  other  jurora  before  inipaa- 
nelled,  are  tried  and  sworn  to  speak  the  truth  of 
the  mattera  within  contained  ;  who,  upon  their 
oath  sav,  that  as  to  the  firet  issue  within-joined^ 
the  said  John  Mostyn  is  goilty  of  the  premises 
within  laid  to  his  charge,  in  manner  and  fiim 
as  the  said  Anthony  hath  within  complainedl 
against  him :  and  as  to  the  other  issue  within 
joined,  the  said  jurora  on  their  said  oath  further 
say,  that  the  said  John  Mostyn,  of  his  own 
wrong,  and  without  such  cause  as  he  hath  in 
pleading  within  alledged,  on  the  day  and  in  tha 
year  within  mentioned,  at  London,  in  the  parish 
and  ward  within  mentioned,  assaulted  the  said 
Anthony,  and  beat  and  ill-treated  him,  and  im* 
prisoned  him,  and  kept  and  detained  him  in 
prison  for  the  space  of  time  in  the  within  de> 
claration  mentioned,  and  compelled  him  the 
said  Anthony  to  depart  from  and  leave  Minorca 
within  roentifkoed,  and  carried  and  caused  la 
be  carried  the  suid  Anthony  from  Minorca 
aforesaid  to  CarthaGfena,  in  ihe  dominions  of  tha 
king  of  Spain  within  mentioned,  iu  manner  and 
form  as  he  the  sdid  Anthony  hath  by  his  repli* 
cation  within  alledged ;  and  ihey  aasess  the 
damages  of  the  said  Anthony,  by  reason  of  the 
premises  within  specified,  besides  his  coats  sod 
charges  by  him  laid  out  and  eiuended  aheiit 
his  suit  in  this  behalf,  to  3,000i.  and  for  his 
said  costs  and  charge*;,  to  turty  shillings. 
Therefore  it  is  considered,  that  the  said  An« 
thony  recover  against  the  said  John  his  da- 
mages aforesaid,  to  3,000/.,  and  UL  bv  the 
jurv  aforesaid,  in  form  atoresaid  asseascdy  and 
88/.  10  thesakl  Anthony,  at  his  leqacst,  ibr  thn 


J89] 


Fabrigoi  v.  MMyfU 


A.  D.  1773. 


[190 


CMfti  and  chftrfpes  aforesaid,  by  the  Court  here 
ftrndrease  adjudged  ;  which  said  damages  in 
Ike  whole  amouot  to  3,090/.,  &c.     Afterwards 

« at  is  to  say)  before  our  lord  the  kiog  at 
citminster,  conies  the  said  John  Mostyn,  in 
baprouer  peraon,  and  says,  that  at  the  trial  of 
Ikaid  caoae  before  the  said  sir  Henry  Gould, 
Isfhtt  the  counsel  of  him  the  said  John  Mos- 
t^  proposed  certain  exceptions  to  the  ophiion 
•  Be  aaid  sir  Henr^r  Gould,  which  exceptions 
■we  written  in  a  hill,  and  sealed  by  the  said 
■%e;  which  bill  of  exceptions  the  said  John 
Mtya  now  brings  into  this  court ;  and  prays 
i  writ  of  our  lord  the  king  to  the  said  sir  Henry 
Gaald,  to  eonfesa  or  deny  his  seal  so  put  to  the 
■id  bill  of  exceptions,  according  to  the  form  of 
Iha  statute  in  such  cases  made  and  pro? ided, 
vbicfa  writ  is  granted  to  him  returnable  iu  15 
^ta  firoiD  the  day  of  the  Hoi  v  Trinity ;  at 
vhidi  day,  before  our  lord  the  king  at  West- 
■iwatfr,  conies  the  said  Johu  Mostyn  in  his 

S«r  pamn  ;  and  the  said  sir  Henry  Gould, 
[bt,  likewise  in  his  proper  person,  comes 
acknowledges  bis  seal  put  to  the  said  bill 
tf  ooeptknia,  which  bill  of  exceptions  foUowa 
■  tiMao  worda. 

<<  The  Bill  of  Exceptions. 

^  That  ia  to  say,  on  the  morrow  of  the  Holy 
TWnity,  13  Geo.  3.  Be  it  remembered,  that  in 
Aatenn  of  Easter,  iu  the  13th  year  of  the 
MfB  of  our  sovereign  lord  George  the  third, 
■aw  kin^  of  Great  Britain,  and  so  forth,  came 
Aashaay  Fabrigaa,  by  Richard  Gregory  hia 
MHBCjt  into  the  court  of  our  said  lord  the  king 
if  Iho  Bench  at  Weatminster,  and  impleads 
Uoatyo,  late  of  Weatminster,  in  the 
of  Middlesex,  esq.  in  a  certain  plea  of 
on  which  the  said  Anthony  declared 
bim. 

[Tbe  declaration,  plea,  and  replication,  are 
act  out  verbatim,  which,  to  avoid  repeti- 
are  now  omitted.    Af^er.  those  pleadings 
the  bin  of  exceptions  proceeds  in  these  words.] 

**  And  afterwarda  (to  wit)  at  the  sittings  of 

Ma  Priua,  bolden  at  the  Guildhall  of  the  city 

af  London  aforesaid,  in  and  for  the  said  city, 

Mom  the  bon.  air  Henry  Gould,  knight,  one 

ef  the  joatioea  of  our  said  lord  the  king  of  the 

Bench,  Thomas  Lloyd,  esq.  being  associated  to 

him  aoDording  t/o  the  form  oC  the  statute  in  such 

caae  made  and  provided,  on  Monday  the  12th 

day  of  inly,  in  the  13tli  year  of  the  reign  of 

ear  aaid  lord  the  now  king,  the  aforesaid  issues 

aa  joined  between  the  said  parties  as  afuresaid, 

fsme  on  to  be  tried  by  a  jury  of  the  city  of 

Landon  aforesaid,  for  that  purpose  duly  iin- 

faaoelled  ;  at  which  day  came  there  as  well 

the  aaid  Anthony  Fabrigas  as  the  said  John 

Maatyo,  by  their  attornies  aforesaid.    And  the 

JBiora  of  the  jury  aforesaid,  impannelled  to  try 

Ibe  said  iasuea,  being  called  over,  some  of  them, 

asaKly.   Tliomaa    Zacbary,  Thomas  Ashby, 

Usvid  Powell,  and  Walter  Ewer,  came  aud 

acre  then  and  there  in  due  manner  chosen  and 

Mvom  lo  try  the  aame  issues ;  and  because  the 

OH  af  tba  jurors  of  the  same  jury  did  not  ap- 


pear, therefore  othera  of  the  by-atanders  being 
chosen  by  the  sheriffs,  at  the  request  of  the  said 
Anthony,  and  by  command  of  the  said  justice, 
were  appointed  anew,  whose  namea  were 
affixed  to  the  pannel  of  the  said  jury,  according 
to  the  form  of  the  statute  in  such  case  made 
and  provided  ;  which  said  jurors  so  appoioted 
anew,  (to  wit)  William  Tomkyn,  Gilbert 
Howard,  Thomas  Boulby,  John  Newball, 
John  King,  James  Smith,  William  Hurley, 
and  James  Selby,  being  likewise  called,  came, 
and  were  then  and  there  in  due  manner  tried 
and  sworn  to  try  the  same  issues.  And  upon 
the  trial  of  the  said  issues,  the  counsel  learned 
in  the  Ulw  for  the  said  Anthony  Fabrigas,  to 
maintain  and  prove  his  said  declaration,  on  hia 
part  gave  in  evidence,  that  the  said  John,  ai 
the  island  of  Minorca,  on  the  17th  day  of 
September,  in  the  year  of  our  Lord  1771,  aeized 
and  took  the  aaid  Anthony,  and  without  any 
trial  impriaoned  him  for  the  space  of  six  daya, 
a^inst  his  will,  and  banished  him  for  the  apace 
of  twelve  months  from  the  said  island  of  Mi« 
noroa,  and  caused  him  to  be  put  by  soldiers  on 
board  a  ship,  and  to  be  transported  from  the 
said  iaiand  of  Minorca  to  Cartbagena  in  Spain, 
for  the  said  space  of  twelve  months :  where- 
upon the  counsel  for  the  said  John  Mostvn  did 
then  and  there,  on  the  part  of  the  aaid  John 
Mostyn,  give  in  evidence,  that  the  said 
Anthony  was  a  native  of  Minorca,  and  at  the 
time  of  taking,  aeizing,  and  imprisoning  him, 
and  banishing  him  as  aforesaid,  waa  residing 
in  and  an  inhabitant  of  the  arraval  of  St.  Phil* 
lip'a  in  the  said  island.    And  it  was  further 

Siven  in  evidence  on  the  part  of  the  aaid 
efendant,  that  the  said  island  of  Minorca 
waa  ceded  to  the  crown  of  Great  Bri- 
tain by  the  king  of  Spain,  by  the  treaty  of 
Utrecht,  in  the  year  of  our  Lord  17 13 ;  and 
that  the  article  in  the  said  treaty,  relative  to 
the  said  island,  is  as  follows :  **  Rex  porr(>  Ca« 
tholicus,  pro  se,  hseredibus  et  successoriboa 
suis,  cedit  parit^r  corooie  Magne  Britannia 
totam  insulam  Minorca;,  ad  e^mque  transfert 
in  perpetuum  jus  omne  dominiCimque  plenisai- 
mum  aupradictam  insulam,  speciatlm  vero 
super  urbem  arcem  portum  muuitiones  et  si* 
num  Minorisenses,  vulg6  Port  Mahon,  un4 
cum  aliis  portubus  locis  oppidisque  in  prefatft 
insult  sitis ;  provisum  tamen  est  ut  in  articub 
suprascripto  quod  nullum  perfugium,  neque 
recpptaculum  patebit  Maurorum  navibua  bel-' 
licis  quibuscOnque  in  Purtu  Mahonis,  aut  in 
alio  quovis  portu  dictee  insulce  Minoitse,  qu6 
orae  Hispanise  ipsorum  excursiontbus  iniestea 
reddantur.  Quinim6  commorandi  8olummod6 
caus4  secundilm  pacta  convcnta  Mauris  eorCim- 
que  navigiis  introitus  in  insulam  pnefatam  per- 
mittetur.  Promittit  etiam  ex  su&  parte  regina 
Magnee  Britanniie,  qu5d  si  quand5  insulam 
Minorcce  et  portus  oppida  locaque  in  e^lem 
aita  a  coronll  regnorum  suorum  quovis  modo 
alienari  in  posternm  contigerit,  dabiiur  coronsa 
Hispaniee  ante  nationem  altam  qiiauictinque 
prima  optio  possessionem  et  proprietatem  pitr^ 
memoratce  insule  redimenUi.    Spondet  insup^ 


191] 


14  GEORGE  III. 


Adkmjbf  Fabe  ImpriMnment^^ 


[19f 


regria  ma  roajestM  Magne  Britannue,  ie  fitctu- 
rsm  lit  iocobe  omnen  insuls  pnelktoe  taiii  ec- 
desiastici  quam  secalam  bonis  suis  unirenis, 
etboDOribaa  tut6  pacal^ue  fruantur.  Atque 
reli^onia  Romaoa  Catholics  iiher  uaut  iit 
permittetura,  Otqae  etiamejut  modi  ratioDefs  in^- 
■ntnr,  ad  tuendaio  reliij^onein  praMlictain  to 
cftdem  insiilft,  que  ^  gtibernatione  civili  atque 
ik  legibas  Magnie  Britannie,  penit&s  abtiorrere 
noD  f  ideaolar.  Polenint  etiam  suis  honoribiis 
ct  bonis  frui,  qui  nuocsus  Catholice  majestatit 
verTitio  addicii  saiit,  etiamsi  in  eodrm  perman- 
•erint ;  et  liceat  cuicunque,  qui  prsefataro  in- 
aulam  relinquere  ? oliierit,  bona  sua  ? eodere  et 
liber^  io  Hispaoiam  transvehere."  And  it  was 
further  given  in  evidence  oo  the  part  of  the  said 
defendant,  that  the  Minoroiiins  are  in  general 
governed  by  the  Spanish  laws,  but,  when  it 
•ervet  their  purpose,  plead  the  English  laws. 
And  it  was  further  pvPD  in  evidence  on  the 
behalf  of  the  said  defendant,  that  there  are 
certain  magistrates,  called  the  chief  justice 
criminal,  and  the  chief  justice  civil,  in  the  said 
island.  And  it  was  further  given  in  evidence 
by  James  Wright,  the  secretary  to  the  defen- 
dant, that  the  said  island  is  divided  into  four 
districts,  exclusive  of  the  arraval  of  St.  Phil- 
lip's, which  the  witness  always  understood 
to  be  separate  and  distinct  from  the  others,  and 
under  tlie  immediate  order  of  the  governor ; 
so  that  no  magistrate  of  Mahoii  could  go  there 
to  exercise  any  function  without  leave  first  had 
from  the  governor.  And  it  was  further  given 
in  evidence  on  the  part  of  the  said  defendant, 
by  colonel  Patrick  Mackellar,  that  the  arraval 
of  St.  Phillip's  is  surrounded  by  a  line- wall  on 
4>ne  side,  aud  on  the  other  by  the  sea,  and  is 
called  the  royalty,  where  the  governor  has 
greater  power  than  any  where  else  in  the 
island,  and  where  the  judges  cannot  interfere 
but  by  the  governor's  consent.  And  it  was 
further  given  in  evidence  by  £dwanl  Blalce- 
ney,  who  had  been  secretary  to  governor 
Blakeney,  that  nothing  can  be  executed  in  the 
arraval  but  by  the  governor's  leave ;  and  the 
judges  have  applied  to  him  the  witness  for  the 
governor's  leave  to  execute  pnicess  there. 
And  ft  was  further  given  in  evidence  by  the 
■aid  James  Wright,  that  for  the  trial  of  murder 
and  other  great  offences  committed  within  the 
said  arraval,  u(M}ii  application  to  the  governor, 
be  generally  appoints  the  asseaseur  criminal  of 
Mabon,  and  for  lesser  offences  the  mustastaph ; 
and  that  the  said  John  Mustyn,  at  the  time 
of  the  seksing,  taking,  imprisoning,  and  banish- 
ing the  said  Anthony,  was  the  governor  of  the 
said  island  of  Minorca,  under  and  hy  virtue  of 
certain  letters  patent  of  his  present  majesty, 
under  the  great  Mai  of  Great  Britain,  bearing 
date  the  2il  day  of  March,  iu  the  8tli  year  of 
bis  reign,  whereby  hi«  majesty  constituted  and 
appointed  the  said  defendant  to  be  captain- ge- 
neral and  governor  in  chief  in  and  over  the 
said  island  of  Minorca,  and  the  town  and  gar- 
rison of  Port  Mahon,  and  the  castles,  forts,  and 
other  works  and  fortifications  thereunto  belongs 
ing,  and  all  other  towns  and  pUces  within  the 


said  island ;  and  his  majesty  did  thereby  give 
and  grant  onto  the  said  defendant  John  Mos- 
tyn,  or  in  his  absence  to  the  lieutenaint-govser- 
nor,  or  commander  in  chief  for  the  time  being, 
all  ffowers,  privileges,  and  authorities,  civil  and 
military,  unto  the  said  office  belonging,  to 
have,  hold,  and  exercise  the  said  office,  powers, 
privileges,  and  authorities.  dnrin^Jf  his  majesty's 
Hill  and  pleasure;  and  the  said  defendant  Jolin 
Mostyn,  or  in  his  absence  the  lieutenant-go- 
vernor, or  commander  in  chief  for  the  time 
beinsT,  arc  to  observe  and  obey  all  the  orders 
and  instructions  therewith  given  to  him,  and 
all  such  further  and  other  orders  and  instmc- 
tions  as  shall  he  from  time  to  time  given  to  him 
under  his  majesty's  royal  sign  manual  or  sig<' 
net,  or  by  his  majesty's  order  in  privy-coun- 
cil ;  and  his  said  majesty  did  thereby  strictly 
charge  and  command  all  his  officers,  ministem, 
magistrates,  civil  and  military,  whatsoever,  and 
solfliers,  and  all  others  his  loving  subjects,  in- 
habiting or  being  in  tbe  said  island,  to  obey 
him  the  said  John  Mostyn,  as  captain-c^eneral 
and  chief  governor  thereof;  and  that  the  de- 
fendant, being  so  governor  of  the  said  island, 
caused  the  said  Anthony  to  l>e  seized,  taken, 
imprisoned,  and  banished  as  aforesaid,  without 
any  reasonable  or  probable  cause,  or  any  other 
matter  alledged  in  the  defendant's  plea,  or  an^ 
act  tending  thereto.  But  neverthelera  tbe  said 
counsel  for  the  said  John  Mostyn  did  then  and 
there  insist  before  the  said  justice,  on  the  behalf 
of  the  said  John  Mostyn,  that  tbe  said  several 
matters  so  produced  and  given  in  evidence  on 
the  part  of  the  said  John  Mostyn  as  aforesaid, 
were  snfticient  and  ought  to  be  admitted  and 
allowed  as  decisive  evidence,  to  entitle  the  ssid 
John  Mostyn  to  a  verdict,  and  to  bar  the  said 
Anthony  of  his  aforesaid  action ;  and  the  said 
counsel  for  the  said  John  l^Iostyn  did  then  and 
there  pray  the  said  justice  to  admit  and  allow 
the  said  matters  so  produced  and  given  in  evi- 
dence for  the  said  John  Mostyn,  to  be  concla- 
sive  evidence  in  favour  of  the  said  John  Mos- 
tyn, to  entitle  him  to  a  verdict  in  this  cause^ 
and  to  bar  the  said  Anthony  of  his  action  afore- 
said. But  to  this  the  counsel  learned  in  the 
law  of  the  said  Anthony,  did  then  and  there 
insist  before  the  said  justice,  that  the  same  were 
not  sufficient  nor  ought  to  be  admitted  or  al- 
lowed to  entitle  the  said  John  Mostyn  to  a  ver- 
dict, or  to  bar  the  said  Anthony  of  his  action 
aforesaid.  And  the  said  justice*  did  then  and 
there  declare  and  deliver  his  opinion  to  the  jury 
aforesaid,  that  the  said  several  matters  so  pro- 
duced and  given  in  evidence  on  the  |iart  of  the 
said  John  Mostyn,  were  not  sufficient  to  bar 
tbe  said  Anthony  of  his  action  aforesaid,  and 
with  that  direction  left  the  same  to  the  said 
jury;  and  the  jury  aforesaid  then  and  there 
gave  their  verdict  for  the  said  Anthony,  and 
3,000/.  damages,  Whereupon  the  said  coun- 
sel for  the  said  John  Mostyn  did  then  and  there, 
on  the  behalf  of  the  said  John  Mostyn,  except 
to  the  aforesaid  opinion  of  the  said  justice,  and 
insisted  on  the  said  several  matters  as  an  ab- 
solote  bar  to  the  said  acliODt    And  inasmock 


ISS]  Fabr^eu  v.  Modyn* 

■t  tbo  Mid  ■ereral  matters  so  produced  sod 

B'nm  in  evideoee  od  the  part  uf  tbe  said  John 
ostjn,  mnd  by  bis  counsel  aforesaid  objected 
ami  inaisted  on  as  a  bar  to  the  action  aforesaid, 
da  ant  appear  by  tbe  record  of  the  verdict 
afanaiil,  the  said  counsel  for  the  said  John 
Ikryn  did  then  and  there  propose  their  afore- 
saitf  exceptions  to  the  opinion  of  the  said  jus- 
lier,  and  requested  the  said  justice  to  put  bis 
m\  to  tbw  bill  of  exception,  contsioing  the 
md  aereral  matters  so  produced  and  §p?en  in 
trideooe  oo  the  part  of  the  aaid  John  Mostyn 
ai  aferesaid,  according  to  the  form  of  the  sta- 
tala  io  such  case  miule  and  profided.     And 
Ibcieapoo  the  aaid  justice,  at  the  request  of  the 
■id  eouDsel  for  the  said  John  Mostyn,  did  put 
Ml  ami  to  this  bill  of  exceptions,  pursuant  to 
Ihe  aforesaid  atatute  in  such  case  made  and 
piwided,  on  the  said  ISth  day  of  July,  in  the 
15th  year  of  the  reign  of  his  present  miyesty. 

**  Assignment  of  Errors. 

**  And  hereupon  the  said  John  Mostyn  says, 
that  IB  tbe  record  and  proceedings  aforesaid,  and 
also  io  the  matters  recited  and  contained  in  the 
ssid  bill  of  exceptions,  aud  also  in  giving  the 
terdid  upon  the  said  issues  between  the  parties 
aferesaid  joined,  and  also  in  giving  the  judg- 
■eat  aforesaid,  there  is  a  manifest  error  in 
Ibif,  that  the  justice  before  whom,  &c.  had  no 
authority,  or  jurisdiction  to   try  the 
or  either  of  them,  at   the  time 
the  aaine  were  tried  as  in   the  record 
;     nor   had    the  said   JuNtice  any 
faver  or  authoritv  to  take  or  swear  the  said 
|MT  tlierenn.      There  in  also  error  in  this, 
Mtbe  said  justice  before  whom,  ^c.  at  ami 
^BB  tbe  trial  of  the  said  issut^  between  the 
fm^afonrsaid  joined,  did  declare  and  deliver 
Vk  opinion  to  the  jiir^  afnri'saiii,  thatuhe  said 
■Cftral    matters    nienlioiieil    in    the   said  bill 
sf  exoeptiiius,  and   so  as  albresaid    profluced 
aad  proved  on  the  part  of  the  Kaid  Joiin  Mos- 
t^a,  were  nut  upon  the  whole  of  the  case  suf- 
Barat  to  iMr  the  said  Anthony  Fabrigas  of  his 
aud  action  against  him,  aud  with  that  opinion 
kA  the  saoi*-  to  the  jury ;    whereas  the  Name 
were  suliicieot  to  bar  the  said  Am  bony  of  his 
■i4  acu«iD-      There  is  also  error  in  tliis,  that 
ly  the  record  aforesaid  it  appears,  that  the 
tcrtict  afuresaid  was  given  upon  the  suid  issues 
Wcwreo  the  naid  parties  joined,  for  the  said 
Aaiboiiy  Fdbrigas ;  whereas  l»y  the  law  of  the 
Und,  the  verdict  on  the  said  issues  ought  to 
hste  b*-eii  )(iven  for  the  suid  John   Mostyn, 
igsin^t  the  said   Anthony   Fabrigas.     Tliere 
ii  a]<m  ernn-  io  this,  that  it  appears  by  the  re- 
csrd  aforesaid,  that  judt^inent,  in  form  afore- 
■id  ifiveii,  was  i^iven  for  the  said   Anthony 
Fabrii^a^  aitainst  him  the  said  John  Mostyn  ; 
wbi-rrii%  by   the  law  of  the  land,  jndginent 
asuebt  to  have  been  given  for  the  said  John 
MiAl^n   against  the  said  Anthony  Fabrigas. 
Aad  ihe  said    John  MoMtyn  prays,  that  the 
jadgmeut  aforesaid,  for  the  errors  aforesaid, 
aad  others  in  the  record  and  proceedings  afore- 
,  may  be  re? erted^  annulled,  and  altogether 

VUU  XX. 


A.  D.  177S.  [I9A 

had  for  nothing ;  and  that  be  the  said  John 
Mostyn  may  be  restored  to  all  which  be  ha» 
lost  by  occasion  of  the  judgment  aforesaid,  &o* 

"In  Nullo.eat  Erratum. 

**  And  the  said  Anthony  hereupon  voluntarilj» 
cornea  in  bis  own  proper  person  into  court  here, 
and  says,  that  neither  in  the  record  or  proceed* 
ings  aforesaid,  nor  in  the  matters  recited  anit 
contained  in  the  said  bill  of  exceptions,  nor  ii| 
giving  the  verdict  upon  the  said  issuea  betweea 
the  parties  aforesaid  joined,  nor  in  the  giving 
the  judgment  aforesaid,  is  there  any  error: 
and  the  said  Anthony  prays,  that  the  court  of 
our  lord  tbe  king  now  here  will  proceed  to  the 
examination,  aa  well  of  the  record  and  pro- 
ceedings aforesaid,  as  of  the  matters  recited 
and  contained  in  the  aaid  bill  of  exceptions  and 
of  the  matters  aforesaid  above  assigned  for 
error,  and  that  the  aaid  judgment  may  be  in 
all  things  affirmed.  But  because  tbe  Court  of 
our  lord  the  king  now  here  is  not  yet  advised 
to  give  their  judi^ment  of  and  concerning  tbo 
premises,  a  day  is  therefore  given  to  the  par- 
ties aforesaid,  to  be  before  our  lord  the  lung, 
until  on  the  morrow  of  All  Souls  now  next 
ensuing,  wheresoever,  &c.  to  hear  judgment  of 
aud  upon  the  premises ;  for  that  the  Court  of 
our  said  lord  the  king  now  here  is  not  yet  ad* 
vised  thereof,  5cc." 

Mr.  BuUer.  My  lord,  there  are  aome  atraoge 
blunders  upon  tliis  record,  which  thoui^b  I 
might  make  objections  to,  I  will  not  mis-speud 
the  time  of  the  court  in  slating  them,  because 
1  can  easily  conceive  myself  that  they  will  ad- 
mit of  a  very  short  answer ;  and  therefore, 
waving  all  objections  to  the  formal  part  of  the 
record,  the  general  question  upon  this  record 
will  be,  Whether  an  action  can  he  maintained 
in  this  country  against  a  governor  of  Minorca^ 
for  an  imprisonment  committed  by  him  there, 
in  his  character  and  office  of  governor,  upoi^ 
the  person  of  a  Miiiorquin,  even  though  the 
governor  should  have  erred  in  his  judgment, 
anil  have  been  mistaken  in  the  necessity  whicU 
he  conceived  demanded  an  immediate  and  re- 
solute exercise  of  the  powers  of  his  office? 
My  lord,  thongh  this  be  the  general  question, 
I  shall  beg  leave  in  the  argument  to  divide  il 
into  two :  first,  whether  in  any  case  an  action 
can  be  maintained  in  the  courts  at  W^tstminster, 
for  an  imprisonment  committed  at  Minorca 
upon  a  native  of  that  place:  and  secondly,  if  it 
should  be  admitted  that  an  action  will  lie 
against  any  other  person,  yet  whether  such 
action  c^n  be  mahitained  against  a  governor, 
acting  as  such  within  the  i>eculiar  district  of 
the  arraval  of  St.  Pliillip's?  My  lord,  iu  the 
consideration  of  both  these  questions,  it  may 
be  material  to  attend  a  little  particularly  to  the 
situation  and  constitution  of  the  island  of  Mi- 
norca, and  arraval  of  St.  Phillip's,  within  which 
this  transaction  arose.  As  to  that  the  Conrt  will 
be  much  relieved  by  the  contents  of  this  re- 
cord;  for  it  is  l!here  stated,  that  this  island,  till 
the  year  1713,  waa  a  part  of  the  dominioni  of 


195] 


14  GEOHGE  m. 


AdUmJbr  FaUe  Impriaonmettt-— 


[19« 


the  kingdom  of  Spiin,  and  then  it  was  ceded  . 
to  the  crowD  of  Great  Britain,  reservini^  to  the  , 
inhabitants  their  property,  their  religion,  and  . 
the  laws  necessary  fur  the  preservation  of  their  i 
relii^ioo.  It  is  further  stated  in  the  record,  | 
that  the  island  is  not  governed  by  the  laws  ' 
of  England,  but  by  the  laws  of  Spain ;  and 
that  the  arraval  of  St.  Phillip's  is  subject  only 
to  the  controul  and  governnnent  of  the  go- 
Ternor  himself,  for  in  that  there  is  no  regular 
law-  officer ;  there  is  no  power  to  which  the 
subject  can  apply  for  justice  but  to  the  go- 
Yernor  himself;  he  is  therefore  the  sole  and 
absolute  judge  within  the  arraval ;  bis  will  is 
the  law  there,  and  that  district  tt  least  is 
t  despotic  go? emment.  Whatever  may  be  the 
case  in  colonies  and  newly- discovered  coun- 
tries, I  fancy  it  will  not  now  be  denied,  that, 
even  in  countries  obtained  by  conquest,  the  old 
]aws  of  the  place  continue  in  force  till  they  are 
changed  or  aller^  by  the  conquerors :  much 
less  can  it  be  contended,  that  In  a  country  ceded 
as  this  was,  the  laws  of  the  place  receive 
any  alteration  till  a  change  is  declared  by  the 
new  sovereign.  In  the  present  case,  there  has 
been  no  new  code  of  laws  established  in  this 
island ;  and  therefore,  indepciii^ently  of  the  par- 
ticular facts  which  are  stated  as  proved  in  this 
cause,  1  think  I  may  safely  assert  it  as  an  un- 
deniable proposition,  that  this  island  is  now  go- 
Terned  by  the  same  laws  as  it  was  before  the 
year  1713. 

It  is  stated  in  the  record,  that  'the  district 
where  the  present  cause  6f  action  ah»se  is  sub- 
ject only  to  the  immediate  order  of  the  go- 
Ternor ;   so  much  so,  that  no  judge  of  the 
island  can  exercise  any  function  there,  without 
the  particular  leave  of  the  governor  for  that 
purpose.^    If  the  laws  of  the  country  where  the 
offence  is  committed  are  different  from  the 
laws  of  this  kingdom,  it  seems  to  me  to  make 
DO  difference  with  respect  to  the  propriety  of  an 
action,  whether  such  country  is  subject  to  the 
crown  of  Great-Britain,  or  to  any  other  state; 
for  whether  the  fact  be  an  offence  or  not,  naust 
be  decided  by  the  particular  laws  of  the  place 
where  it  was  committed,  and  not  by  the  laws 
of  this  country.    This  is  a  case  whet«  the  law 
of  the  place  is  different  from  the  law  of  this 
country;   and  therefore  the  question   might 
have  been  taken  much  larger  than  I  have  done 
it :  namely,  whether  the  subject  of  a  foreign 
power,  wh*o  rules  by  laws  different  from  ours, 
can,  for  an  act  done  in  his  own  country,  seek 
redress  in  the  courts  of  England.    I  believe 
there  are  no  authorities  in  support  of  such  a 
position ;  and  whatever  may  be  the  case,  where 
the  laws  of  different  countries  agree,  and  where 
the  transaction  has  been  between  British  sub- 
jects, with  a  view  to  the  laws  of  England,  (which 
was  the  case  of  Robinson  and  Bland, Bur.  1078), 
that  can  be  of  no  avail  in  the  present  instance : 
for  I  take  it  in  this  case,  if  the  action  can  be 
maintained  at  all,  it  must  be  governed  by  the 
laws  of  Minorca,  and  not  by  the  laws  of  Eng- 
land.   It  is  said  in  the  case  of  Robinson  and 
BUody  that  the  laws  of  the  plac<  irhere  the 


thing  happened  does  not  always  prerail ;  and 
there  an  instance  is  put  by  Mr.  Justice  Wil- 
mot,  that  in  many  countries  au  action  may  be 
maintained  by  a  courtesan  for  the  price  of  her 

K restitution,  but  that  no  such  action  can  be  al- 
iwed  in  this  country.  That  is  undoulitedly 
true;  for  wherever  the  foreign  law  is  contrary 
to  the  law  of  God,  to  the  law  of  nature,  or 
'  contra  bonos  mores,'  this  Court  will  not  recogw 
oize  it ;  but  neither  of  these  is  the  present  case. 
My  lord,  besides,  there  is  a  great  difference  be- 
tween entertaining  a  suit,  and  giving  a  remedy 
upon  an  immoral  transaction,  and  punishing  a 
man  for  an  act,  which,  if  done  here,  would  be 
deemed  a  crime,  but,  in  the  country  where  it 
is  committed,  is  esteemed  none.  In  such  t 
case  as  that,  the  law  of  that  country  can  never 
be  the  rule  by  which  this  Court  will  govern 
themselves,  nor  could  they  with  propriety  give 
a  judgment  contrary  to  the  known  law  of  tbk 
land ;  and  therefore,  I  should  apprehend,  that 
in  such  case  they  would  refuse  to  hold  plea  at 
all.  That  seems  to  have  been  the  opinion  of 
lord  chief  justice  Pratt,  in  a  case  that  came  be- 
fore him  m  the  year  1765:  that  was  the  case 
of  Pons  against  Johnson,  and  a  like  case  of 
Ballister  aninst  Johnson.  Those  were  two 
actions  tricS  at  the  sittingi  after  Trinity-term 
1765 ;  an  action  of  trespass  and  false  imprisoiH 
meet,  bronghc  by  the  plaintiff,  a  native  of  Ml* 
norca,  kgminst  the  defendant,  who  was  gorer^ 
nor.  The  fkcts  were,  that  iii  Minorca  there  it 
a  court  called  *  Trihimal  of  Royal  Govemittent  :* 
the  gOTemoris  president,  the  assessor  is  judge: 
the  fiscal'  is  in  nature  of  attorney  gencnJi 
during  the  pendency  of  a  cause,  but,  when  sen* 
tence Is  to  oe  Mssed,  he  has  a  voice  as  well  ae 
the  assessor,  if  they  agree,  the  governor  ii 
bound  to  confirm :  if  they  disagree,  the  go- 
vernor has  the  casting  voice.  It  waa  proved, 
that  this  is  the  only  court  of  criminal  jurisdie- 
tion,  and  that  slanders  are  considered  as  cri- 
minal suits ;  that  the  defendant  wrote  a  letter 
to  the  assessor  and  fiscal,  complaining  that  the 
plaiiitiff  had  spread  re|K>rts  injurious  to  binii 
and  desiring  them  to  enquire  into  it,  and  act  ae 
theji^  thought  just  and  fit.  Upon  this  letters 
"  dire 


the  fiscal  directed  an  enquiry,  and  the 
ordered  ulaintiff  to  be  imprisoned:  he  ap- 
plied to  oefendant  Johnson  to  be  bailed,  wno 
refused  to  bail  him ;  but  it  appeared  that  the 
assessor  was  the  person  whose  business  it  WtiB 
to  bail,  though  orders,  as  well  for  impriaoning 
as  bailing,  often  passed  in  the  name  of  the  court. 
Upon  this  evidence  it  was  objected,  first,  that 
by  the  treaty  of  Utrecht,  the  inhabitants  have 
their  own  laws  preserved  to  them,  and  are  not 
to  be  sued  here,  and  therefore  have  no  right  to 
sue  here :  secondly,  admitting  them  to  have  o 
right  to  sue  here,  the  action  is  misconceived. 
Ice.  Lord  chief-justice  Pratt  said,  **  I  think 
it  very  improper  such  action  should  be  brought 
here,  where  foreign  law  is  to  be  brought  into 
question :  the  bconvenience  appeara  bere^ 
where  all  the  evidence  we  have  had  is  tlio 
testimony  of  one  vritness;  and  I  should  think 
if  1  were  under  the  neceintj  of  proiioiiBciiBf 


Fabrigas  v,  Moslyit. 

V'W^.^J'^  ^>'  pirole  «*icknce  ooght  not 

M&aiumcicDi,  but  a  coinmiHion  BbuuM  ^o, 

pi  ilM  k<*  be  certiBeil."    Ai  to  ilie  questiuo 

■jHiiMlictiaa,  his  lordship  Mid.  "  Itiacerlain 

Mn  tr*  maoy  cases  of  traotiKuy  actions  be- 

Rmi  Mibjecl  Kod  lubjecl,  where,  tbnugU  llie 

tMiariae*  in  a  foreigD  uounlry,  the  action 

■5  le  brouifbt  here ;  sucb  as  contract,  trcs- 

jM,are*M>Tab«iii]prigDDmEnlorioinefaind*: 

irflh*  rule  ihal  should  guvero  seemi  to  be, 

ikt«  Ibn  subject  miller  ii  nf  that  kind,  Hint 

ttlnr  of  DDlure  ahnuU  goiero  all  orer  the 

ndd.     And  I  Ibiak,  lliat  a  persou  nlio  is  au 

>.'3kb(iu)il  liare  a  ti(;bl  (o  Biie  here  in  cBics 

'<il  ku>4 :   bat  I  tbink  tbii  ia  not  to  be  ex> 

itS  M   tnutntory  aciloni  of  erery  kind, 

-reibc!  Um  foci  issoinlarmixeil  wilblbecase 

'  111  alter  tlie  caw,  anil  vary  the  legality  ol'tbe 

jntactioa."  Ilia  lurdibipihen  expressed la me 

M*  DO    the   form  of  tbe  plea;  and  finally 

.  .tinted  ibc  plaiatilfa  ua  auollier  poiot.     Aly 

M,  I  cilc  tbia  caae  Air  the  sake  ofthe  reaton- 

■r  eHilain««l  ■■>  <t ;  lad  lliere  trai  the  opinion 

mi  tay  learned  judge,  that  an  aclioa  in  this 

■■Htry  wmm  iiDpro)ier,  wh«re  it  was.to  inler- 

■nd  tad   I<1«oiled  wilU  the  law  of  another 

a^uy,   as  (o   vary  or  chaoKe  the  legality  of 

ihlniKacrio*!.    My  lord,  aonlher  thing  which 

mora  by  *)>at  c'^  *'r  tl»i  though  lord  Cam- 

^tMDf  Id  Ihitik  sn  acliun  may  in  some  esses 

baa  a  fanafi"  traiiiiaclion,  yet  he  confini:'!.  it 

ll  ^BH  ohnre  llie  tranaaclion  happened  lie - 

INw  •tilij'ct  and  suhjecl.    This  is  not  a  trans- 

fcwii   otiicb    bapjieiied  tielween  auhject  and 

I         .■'■^Uiiii  81  of  ihe  realm  of  Engtaod) 

>  ••■  where  the  same  law  gnverns  all 

rkl;  but  it  ia  that  pnrliculur  case 

<>v  lonl  Camdeu,  so  niixe<l  with  ihe 

>i  It  alli^ii  llie  caae,  and  rarlea  the 

ilie  IraoMciion.     In  crimioal  coses 

->  i>F  dear,  that  an  offence  cum- 

1 1  rf i|;n  parts  cnunol,  unless  under 

'  I  •lutes,  he  tried   in  tliii  country  j 

.<|iiiiiaannallie  Court  of  Exi:hemier 

r*  ported  in  tit  Vexey,   S16,  The 

<  ^<mpany  iguinsl  Campbell,  7tli  of 

I  -  Ku  lufurmuiron  was  hrouglil  in  ibe 

E(u>'  I''  iU<'  litorney  General,  that  the  defen- 

Awi  Diigbi  diacoter  bow  he  uaroc  by  the  poa- 

(r«Bd,  Txdencv,  cuntrirance,  or  oiher  meaus  ; 
«ail  It  kifUirr  ih»y  weie  not  the  property  of  tlie 
bsdiaua,  fruin  whom  tlicy  were  so  taken  by  the 
^fewtaai  ami  otliets.  The  court  there  aay  ihe 
nric  ia,  ilui  ibiaconil  ahall  not  ollige  one  to 
AaMTTFT  Ihal,  wbicl>,  iriieanBHera  in  ihe  af- 
6r)ut>",  will  s'>liji-ci  bun  to  the  puoishmcnl 
t^  a  criiD£  ;  rt,r  it  n  not  niilerlal,  that  if  he 
■^■ef«ui  Ihr  ue^-utiie,  it  wdlhc iiobnrin:  and 
ibu  he  M  puki'-hal-W,  appeara  from  the  caae  of 
ttmithti^':  ftarkvr,  Alk.  21.  as  ajuriadiction  ia 
wmad  nCalciUla  lur  criminal  lacis,  where  he 


bare  :  tike  the  case  i 

in  a  raps  in   Ireland,  and  sent 

imty  tbe  go' eminent  tu  be  tried,  al- 
IIm  ewn  ol  b-  B.  bare  tiluMU  lo  do  it. 


A.  D.  1775. 


[198 


My  lord,  here  is  a  posilire  o|>iuion,  that  in  cri- 
rnmal  cases  arising  abl-uad  there  is  no  juris- 
diction iu  the  copiinon  lair  court*  In  England. 
The  only  thing  to  be  done  is  to  send  the  party 
to  tbe  country  where  the  offence  was  com- 
mitted;  but  it  ahall  not  be  tried  here,  tfa  man 
were  lo  marry  two  wires  in  a  country  where 
bigamy  i*  allowed,  it  can  nerer  be  contende<l 
in  anch  a  case,  if  Ihe  rnan  came  into  England 
he  should  be  liable  to  he  hnnged  here,  becauss 
it  is  an  offence  in  Ihis  country,  though  nuna 
where  it  was  coilimilled.  If  a  crime  commit- 
ted abroad  cannot  be  tried  hrre,  upon  what 
ground  shall  a  civil  |iersonil  Injury,  done  out  of 
Ihe  kingdom,  be  tried  here  ?  There  are  many 
reasons  why  a  crime  committed  abroad  might 
be  tried  here,  and  a  civd  injury  not ;  but  do 
reaaon  occurs  to  me  why  a  ciTilinjury  should, 
and  a  crime  not.  Ciril  injuries  depend  much 
upon  the  police  and  conalitulion  ofthe  country 
where  they  occur,  and  the  aame  coudiict  mn^ 
be  Bclionable  in  one  cutintry  which  la  ju8ti& 
able  in  another:  but  in  crimes,  as  rourijer,  per- 
jury, and  manyother  uffencfs,  Ibe  laws  of  most 
counliies  lake  lor  their  basis  the  law  of  (lod  and 
Ibe  law  of  nature;  and  iherefore,  though  tha 
trial  be  in  a  different  country  from  that  in  whicb 
the  offence  was  cnmmilled,  there  is  a  greater 
prohabitity  ofUiKtributing  equal  justice  in  aucb 
cases,  than  in  ci»il  actions.  The  case  men- 
tioned in  Keilney,  20S,  and  canBinied  in  tha 
41h  Inslilute,  W3  and  i,  is  also  an  authority  ib 
myfamur.  Il  first  of  all  gives  a  hialory  of 
sir  John  Stanley's  family,  and  there  fiie  jioiuta 
were  resnlveil ;  first,  that  the  isle  of  Man  waa 
an  ancient  kingdom  of  itself,  ami  no  part  iif  the 
kingdom  of'Engbud  ;  secondly,  ibey  aflirlDed 
■he  case  reported  hy  Keilwey,  anno  ihe  I-llti 
Henry  Ihe  8lh,  to  be  law ;  namely,  Michael- 
mas Ihe  11th  Henry  8lh,  an  office  was  fumii), 
that  Thomns  earl  of  Deib^v.  at  the  limp  of  hia 
deuth  was  seized  of  the  fsle  of  Man  iu  fee  j 
whereupon  the  countess  his  wife,  by  her  coun- 
sel, moved  In  have  her  dower  in  the  Chancery  ; 
but  il  was  resolved  hy  Brudnell,  Bronk,  and 
F  ill  herb  erS  justices,  and  nil  theking'i  connsef, 
ihat  the  office  was  merely  void,  Itecause  t^e 
isle  of  Man  was  nn  part  of  the  realm  of  EnjJ- 
laud,  nor  »as  governed  by  the  laws  of  Ibis 
land  ;  but  it  wfs  like  to  Tournay  in  Nurmaiidy, 
or  Guscoign  in  France,  when  they  were  in  the 
king  of  England's  hands,  which  were  merely 
Out  of  the  power  of  the  Chancery,  which  waa 
Ibe  jilace  to  endow  the  widow,  icv.  Theii 
goevon,  and  sajs,  it  was  rcHuUed  hy  thera, 
that  ncilher  the  alaiute  of  William  the  ad, 
dc  dimit  canditianuMmt,  nor  of  Ihe  STih  qf 
Henry  tlie  Uih,  of  willa,  nor  any  other  general 
act  of  parliament,  did  extend  to  ibe  isle  of  Alan, 
for  the  cause  aforesaid.  8o  tiiere  il  is  held, 
(hat  fur  a  right  in  the  ifle  of  Man,  though  U 
was  part  ot  the  terrilorial  dominions  uf  Ilia 
crown  of  England,  yet  Ihat  no  suit  wnuhl  lie 
inlhecnnrtofChanciry  ;  and  that  this  suit  iO' 
diluted  by  the  widow  fur  htr  dower  there  wiis 
improper,  and  they  could  not  culerlaiuil.  Tba 
caaca  where  iba  courts  uf  Wealmiusicr  hat* 


i99J 


li'-QfiORGfe  III.  AcHainJor  FaUe  impr^onvMnt— 


[800 


taken  cognizance  of  transactioDs  arising  abroad, 
and  entertained  actions  founded  on  them,  seem 
to  be  wbolly  on  c«mtract8,  where  the  lawa  of 
the  foreign  country  have  aj^reed  with  the  laws 
of  England,  and  between  Eiii^'lish  subjects: 
and  even  there  it  is  done  by  a  quaint  lei^ral  fic- 
tion ;  namely,  by  sup|>osing,  under  the  sane  • 
tion  of  a  videlicet,  that  the  cause  of  action  did 
arise  within  this  cotuiiry,  and  that  the  place 
abroad  lay  either  in  London  or  in  Islington. 
But  where  the  contrary  has  appeared,  namely, 
that  the  place  where  the  transaction  did  arise 
was  not  in  Limdon  or  Islington,  there  the 
courts  have  said  such  matters  were  not  triable 
here.  There  is  a  pretty  strong  case  arising 
upon  a  demurrer  in  Lutwyche,  946,  Davis 
against  Yale.  That  was  an  action  for  false  im- 
prisonment of  the  plaintiff  in  Port  8t.  George, 
In  the  East- Indies,  in  parts  beyond  the  seas, 
Tidelicet,  in  Loudon,  in  the  iiarish  of  St. 
)^lary-le-Bow,  in  the  ward  of  Cheap.  It  was 
iresolved  by  the  whole  court,  that  the  declara- 
tion was  ill,  because  the  trespass  is  sup|)Osed  to 
be  committed  at  Fort  8t.  George,  in  parts  be- 
yond the  seas,  videlicet  in  London,  which  is  re- 
pugnant and  absuid  :  and  it  was  said  by  the 
chief  justice,  that  if  a  bond  bore  date  at  raria, 
in  the  kingdom  of  France,  it  is  not  triable 
here ;  so  that  judgment  was  given  upon  the 
ground,  that  it  appearing  upon  the  face  of  the 
record  to  be  in  foreign  parts,  the  supposition 
that  it  was  in  England  was  absurd  and  re- 
pugnant. 

In  Ward's  case,  in  I^atcb.  4,  in  debt,  the 
plaintiff  declares  upon  a  bill,  bearing  date  in  the 
parish  of  St.  Mary-le-Bow,  London  ;  and  upon 
oyer  of  the  deed,  it  bore  date  at  Hamburgh, 
and  the  writ  was  in  detinet  only.      Serjeant 
Bridgman  objected,  that  although  it  was  usual 
to  lay  such  actions  in  any  place,  to  wit,  in 
Kent,  London,  &c.  yet  as  tnis  case  is,  that 
cannot  be  ;   because  when  any  place  is  named, 
it  shall  be  understood  primi  facie^  that  the 
place  named  is  a  town,  and  not  a  particular 
place,  as  a  .house,   as  appears  by  3  Ed.  3, 
68,    et    Brev.   638:    from    whence    it    fol- 
lowed, that   Hamburgh    here  should   be  un- 
derstood to  be  a  town,  which  cannot  be  in  Lon- 
don ;  and  therefore  the  declaration  was  faulty, 
^r  not  laying  Hamburgh  wiil,>.i  London.  But 
**  *^^  *rgned  on  the  other  side  by  Barnei-s, 
^no  look  this  diflVrence  in  ph^ading :  "  I  con- 
Jeaa  that  a  place  named  shall  be  understood  to 
•t>e  a  city  or  town,  as  the  seijeant  has  said,  but 
^^i^eribcless  the  date  of  the  deed  shall  be  un- 
^etatood  to  be  a  particular  place  or  a  house ; 
^nd  iliererore,  if  an  obligation  bears  date  at 
x^^'wf'i'     «»"  Callis-Sands,  it  shall   be  under- 
oftiioJm    m      <>^' '*"'*«  taverns  in  London,  and  not 
Andin  th     ^^^^  beyond  the  seas,  21  Edw.  4.  26. 
SJac   A       ^  <^**<^*^"«  Wighansand  Flowers, 
Atblooe'L^^    R  the  dale  of  an  obligation  was  at 
tot  belJ-'^'^^^  lreland,and  therefore  the  action  could 
1  ^OitU^  ^^  '»«''^»  inasmucli  as  Ireland  cannot  l>e 

CQ  It  Jr^^  "^^  •  **"* *^  "  ''•*'  **'*"  '""  Athlone  only, 
H»e^fi^^^«««lf'^***''**«tcouldbe8ued  here,  be- 
"  lone  mightbe  alleged  to  be  in  Eogland. 


So  here  in  our  case,  if  the  date  had  l»een  at 
Hamburah,  *  in  partibus  traiismarinis,'  it  could 
not  be  Nued  here,  inasmuch  as  it  could  not  be 
in  Loudon ;  but  bearing  date  at  Hamburgh 
only,  it  may  be  understood  to  be  in  England.*' 
Whiilock  agreed  with  him:  Brook  faits,  0, 
and  so  have  been  all  deeds  by  experience. 
10  Jac.  an  obligation  dated  at  Elvin  was  sued 
in  this  court,  and  the  action  laid  in  Kent  and 
allowed;  and  yet  Elvin  is  in  Poland.  Dod- 
deridge  said,  **  I  agree  also,  if  the  deed  beara 
date  in  Litile  Britain  or  in  Scotland,  it  shall  be 
understood  to  be  dated  at  those  places ;  so  bera 
being  named  in  London,  we,  as  judges,  ought 
to  maintain  the  jurisdiction  of  our  court,  if  the 
caKe  is  not  plainly  and  evidently  out  of  our  ju- 
ristliction  :  and  f(»r  this  reason  we  ought  to  un- 
derstand Hamburgh  to  be  in  London,  to  main- 
tain the  action,  because  otherwise  it  would  be 
out  of  our  jurisdictiou.  And  if  in  truth  we 
should  know  the  date  to  be  at  Hamburgh 
ouster  le  mere,  yet,  as  judges,  we  should  not 
take  notice  that  it  ia  ouster  le  mere.'*  In  this 
csRc  it  does  appear  upon  the  record,  that  the 
offence  complained  of  was  committed  in  parts 
beyond  the  seas,  and  not  in  £ui;land.  Mr 
lord,  the  plea  states,  that  it  was  committed  m 
the  island  of  Minorca,  in  parts  beyond  the  seas; 
these  are  the  words  of  tne  plea;  and  the  de- 
fendant has  concluded  his  plea  with  a  traverse, 
that  he  was  not  guilty  in  London,  in  the  pariah 
of  St.  Mary-le-UoM,  or  el^eu  here,  out  of  the 
island  of  Minorca.  Now,  my  lord,  this  stands 
admitted  by  the  plaintiff,  because  if  he  had 
thought  fit  to  have  denifd  the  place  mentioned 
ill  the  plea,  and  which  was  absolutely  essential 
for  the  detiemlant  to  mention,  because  his  Joa- 
tification  was  a  local  one,  (and  though  the 
cause  of  action  be  transitory  in  its  uatiii^,  yet, 
if  the  defence  be  local,  the  defendant  has  a 
right  to  state  it  so  in  his  plea,  and  by  that 
means  make  that  local  which  l»efore  was 
transitory,)  he  should  have  made  a  new  assign- 
ment, or  have  taken  issue  on  the  place. 

It  was  incuniltent  upon  the  defendant  to 
aver,  that  what  he  had  done  was  within  the  ar- 
raval,  because  his  authoriiy  was  confined  to 
that  particular  place :  and  therefore,  however 
unjustifiable  be  might  be  elsewhere,  he  was 
justifieil  there.  That  part  of  his  alleiraiina 
stands  admitted  by  the  plaintiff;  therefore  it 
does  appear  from  the  rec«>rd,  that  the  cause  of 
action  did  arise  out  of  the  kingdom,  and  con- 
sequently, as  Dodderidge  says  in  L<itch,  it 
does  arise  out  of  the  jurisdiction  of  this  court : 
and  where  it  so  appears,  the  judges  cannot 
help  taking  notice  of  it;  for,  as  Lutwyche 
says,  as  I  mentioned  before,  it  is  not  triable 
here.  Even  in  cases  the  most  transitory,  be- 
fore the  statute  of  Jeofails,  if  an  action  waa 
brought  in  London,  and  there  was  a  local  justi- 
fication at  Oxford,  the  cause  could  not  have 
been  tried  in  London.  That  was  the  caae  in 
Ist  Saunders,  S47,  an  action  for  words  laid  ia 
London,  charging  him  with  having  stolen  plain 
out  of  Wadharo-College,  vis.  ia  London.  Thn 
ddendaiit  jostifiet  speaking  the  wordSi  bacaosa 


Fabrigat  v.  Mostyn% 

liMpUiaiilFllole  plate  out  nr\Vai1hnm>Ci>11eKe 
<  ittloni.  It  wns  Bitmilleil  iu  ItiM  cmc,  thai 
I  >■  iwld  have  been  ■  fatal  pmir,  btil  il  nul  b«eii 
I  r  the  ■ti.tuU  uf  ieohWa.  Now  the  sutule  of 
)»(«l«  duv*  Dbi  extern!  to  Minnrca ;  tlK^rtfore 
<t^  tave  aiti  aunil  entiTelj'  upon  llie  rommun 
Iu ;  and  hj  that  Ihe  trial  ii  bud,  nnil  ibe  ver- 
ni  f  dill :  (or  lapptnlittf  that  this  or  any  court 
u  Wrttmiiider  ciiulil  holit  cognixance  of  nny 
Ruw  that  nrisM  abrokd,  yet  it  shnulil  not  ha*e 
Uai  liitil  in  Lonilnii,  hut  ahoulJ  hare  been 
1  ilie  next  Knglisb  coiinly  tn  Minorca. 


A.  D.   1773. 


[Sftf 


IfUic  law 


it,  Uwl  l«r  a  inuriirr  coininilieil  by  a  t'treigiier 
■a  aanUier  ciiuiilry  itie  criminal  could  not  be 

Cnhol  farre,  1  am  al  a  \m*  Ibr  a  renaoo  why 
AiNilil  he  puoiilie^  here  tor  ■  treipan  com- 
""  ■  fHider  like  circumalances.     In  orJer  to 
t  that  doetrine,  this  ahiuiilily  muat  be 
d  tbr :  it'  Mr.  fttn&tyn,  who  siooil  there 
m  Mpaciiy  uf  a  noreraor,  anil  hail  the  sole 
'''a  ami  ^Ternineut  of  \\\\*  place,  liad 
I  Falirii^e  guilly  of  an  otTence  which 
d  his  lite,«uil  hall  punished  him  accoril- 
r,  be  coulil  not  have  he«n  |jiiDiabeil  ;  but 
«  hv  ha*  (trnceeileil  in  a  milder  wa^,  aud 
MtliriMneil  anil  banished  him,  tlivrelore  be 


.    of   enlerlaininir   such 
dlMt  tn  ibis  country  are  utany,  and  some 
■  waulit  certainly  be  iniulerable  ;    but 
(Qtild    ensue  from 
nittg   Ihe  aciiuu    woold   be    rcry   sli^it, 
■BT:    aud    (he  argument,  •  ab   inconreni- 
k*  nrd  Cuke  nays,  haa  beta  ever  allowed 
t  rery  forcible  in  our  law.     Now  if  ibe 
~  ba  maiolaineil  here,  il   must  be  deler- 
by  the  taw  of  tbii  country,  or  by  the 
'  tlie  nUc«  where  the  offence  was  corn- 
It  it  he  driermineil  by  our  law,  Ihat 
Id  Iw  utyual  indeed;  for  Ihen  a  man,  who 
iD|iellnf  Iu  regulale  his  conduel  hy  one 
wftQtd  becondemned  by  anoiher,  which  is 
'■"    npfonW.      Ami    yet  tlie  law    of  thit 
ia  ihe  law  ibe  jdainlilf  has  ihunictit  tit 
ibia  cause  upon  ;  and  1  ilonlil  not  bill  he 
■mder  tli«  idra  of  Enjibsh  liberly,  lo- 
la   dMruy   ibe   Mini>ri|uiii    cnnatitulioti. 
Mlaraliim  ia  futiudrd  on  the  law  of  Eng- 
TIm  imprisonment  ii  laid  in  ibe  dtcla- 
_  to  W  oanirary  to  tbe  law  and  cuaiotns  of 
nalm ;  »  that  Ibe  law  of  Eniclaiid  is  Ibe 
ianhM-h  be  sppcali,  and  by  wbieh  lie  de- 
))>>(•*«  may  lie  deli-rmined.     If  an  im- 
iNMal  i*  oammilled  there  aif  re^able  to  Ihe 
of  thai  place,  bul  noi  I'onwiDant  lo  ibe 
■fthit  realm,  is  ibat  a  Krnand  for  puiiish- 
ibis  country  ?  If  il  ia  nut,  the  plaiuiifl' 
inpparl   hi«  case  npon  the  law  of  Kii|(- 
be  manner  ha  now  alteinpla  to  do.     If 
■■  to   be  tried   here  by  the  law  of 
■Dw  in  Ihat  law  to  be  proved!'  There 
fasal  Bi'ide  of  certifyiPK  the  law,  and  lill 
rial  il  may  nut  l>*  known   what  points  of 
M  may  br  rfpiiaile  lo  inqnire  iiitni  wil- 
ts caitiKii  be  mmpelted  to  attend,  nor  can 
cewrl  by  ainr  lueaas  ubligc  them  to  answer 
;  ■»  Ibe  defcDdaot  would  lUud  iu  lb«  lilua- 


tion  of  beinff  ealleil  upon  l<>  make  his  itelencr, 
without  the  power  of  profini;  either  the  law  in- 
ihe  fads  of  bia  case.  If  Ibis  acliou  succeeds, 
erery  FrencbiDun  Ibat  iscoiiltoedinlheBaslile, 
and  has  the  t;ood  thrlune  afietwanls  la  etcape 
lo  litis  country,  would  be  brinuitt^  aelious 
a^ninsl  the  ufli<^ers  Ihal  confloe'l  biiu  ;  every 
loldier,  who  in  time  of  war  ibinkd  hiniaelf 
ill  used  by  bia  cmnmander,  when  hp  re- 
turns home  will  barrass  tbe  comioander  nilb 

that  be  may  hare  suffered  abroad ;  and  it>  the 
end  it  would  lie  nothing  less  then  thai  a  Ger- 
man army  Mould  he  governed  by  an  £ni;lish 
jury.  I(  would  be  necessary  Ibr  every  general 
officer  to  have  a  lawyer  always  al  bia  elbow  ; 
and  even  that,  aa  Mr.  Mnsiyn  has  found  by 
fatal  experience,  would  not  be  sufficient  10  se- 
cure hiro  from  censure  and  punishment:  fur 
in  this  cause  it  was  proved,  that  Mr.  Mnslyn 
had  consulted  all  Ihe  lawyers,  and  all  the  mili- 
tary gentlemen  in  the  iaUud,  on  the  expediency 
and  necessity  of  the  measure  be  look,  before 
he  did  what  is  nnw  complained  of,  and  that 
they  were  all  unanimous  in  their  Ideas  uf  Ihe 
absniule  necessity  of  the  business.  Some  of 
them  openly  prolesied  ibeir  opininna,  and  the 
resi  acquiesced  by  their  silence.  The  lawyers 
went  further,  and  underlmik  la  answer  Jiir  tbe 
legality  of  ibe  measure,  even  at  the  [leril  of 
their  heads. 

In  tbe  second  place,  fnppnning  an  action 
could  be  maintained  here  at  all  liir  a  thing 
done  in  Minorca,  1  shall  beg  leave  lo  sub- 
mit to  yniir  lurdahip,  ihal  whatever  might  b« 
the  case  of  other  persona,  lliuiigh  they  might 
lie  liable  lo  an  action  here  fur  things  done  in 
foreign  parts ;  yet  that  thegovernor  or  general 
officer,  who  baa  the  immediate  command  and 
absolute  direction  of  tbe  place,  aliall  not  be 
called  u|ion  in  an  action  here  tn  answer  for  bia 
conduct  in  that  character.  Minorca  is  an  ab- 
solute govemmeni.  Tbe  guvcmur  for  Ihe 
time  being  IB  Ibe  immediate  representative  of 
Ihe  king  there;  and  he,  al  least  within  Ihe 
arravalnfSt.  Phillip's,  whalever  may  lie  the 
case  iu  the  rest  uf  the  islnuil,  as  all  absolule 
sovereigns  do,  goveroa  aabelbinkk  cnnvenient, 
without  being  tied  np  In  any  fixed  rules, 
There  it  ia  nul  lawful  for  him  to  deviate  from, 
which  ia  no  garerament  wbrrein  Ibe  |i«war 
over  the  lives,  as  well  as  the  liU-riie!i  snil  pro- 
peniea  of  ihe  aubjeirt,  is  nut  lesied  in  the  su- 
preme power;  and  whether  ibat  |H>wer  be 
lodged  in  a  ainule  person,  as  s  mt'iiarch,  or 
many,  asa  psri  lament  or  an  aristocracy,  what- 
ever ihat  snprenie  |>nwer  dues,  il  is  accountable 
fur  to  none  bul  God  ;  aud  ihe  drpuiy  uf  ibtt 
power  is  answerable  unly  lo  God  and  his  prin- 
cipal. Thai  a  judge  cannot  be  piinitbeil  for 
any  ibtng  be  does  in  bis  capacity  as  a  judge  will 
not.  I  believe,  lie  diipulHl ;  il  it  be.  there  ar« 
Ihe  strongest  ■uiburiiiea  ii(ion  that  |Kiii>t.  Ths 
atrongeal  perhaps  in  Sslkeld,  39G,  and  9  Mod. 
318;  iu  Ihe  latter  of  which  cutit-s,  ihi- jui'ge 
had  heeu  guilty  of  the  mi'sl  iiii«Misiiiuiioiial 
conduct.  My  lord,  that  in  Nalkcld  ia  Grocnvelt 
Bgaiusl  Burnell  knd  ulbers.    Tbe  cau  <iaa 


IDS] 


14  GEORGE  IIL  AdiM/or  False  Impritonmeni— 


[204 


this :  the  eensors  of  the  Colle^  of  Pbywciaiie 
in  London  are  empowered  to  inspect,  go?em, 
and  oentare  ell  nractifers  of  physic  in  the  city 
of  London,  and  seten  miles  round,  so  as  to 
ponbh  by  fine,  amerciament,  and  imprison- 
ment. They  con? icted  Dr.  GroenTeltof  ad- 
ministering  *  insalubres  pillules  et  noxia  medi- 

<  oamenU/  and  sentenced  bim  to  a  fine  of  20^ 
nnd  Id  months  imprisonment.  Accordingly, 
the  doctor  was  taken  in  execution  upon  this  sen- 
tence, and  brought  trespass  against  the  officers 
nnd  the  censors.  And  it  was  bolden  by  Holt, 
chief  justice,  first,  that  the  censors  had  a  judicial 
power ;  for  a  power  to  examine,  convict,  and 
punish,  is  judicial,  and  th^  are  judges  of  re- 
cord, becaase  they  can  fine  and  imprison: 
iocondly,  that  being  judges  of  the  matter,  what 
they  have  adjudged  is  not  traversable;  and 
the  plaintiff  cannot  be  admitted  to  gainsay  what 
the  censors  have  said  by  their  judgment,  which 
is,  that  they  were  '  innlubres  pillulas  et  noxia 

<  medicaments,'  4dd  £d.  3,  17,  9tb  £.  4,  3, 
IS  Co.  S4,  25 :  thirdly,  that  though  the  pills 
•nd  medicines  were  really  wholesome  pills  and 
good  medicines,  yet  no  action   lies  sgainst 
Sie  censors,  liecause  it  is  a  wrong  judgment  in 
tt  matter  within  the  limits  of  theicjurisidictioQ ; 
nnd  a  judge  is  not  answerable  either  to  the  king 
or  the  party  for  the  mistakes  or  errors  of  his 
judgment,  in  a  matter  of  which  he  has  juris- 
diction.    It  would  expose  the  justice  of  the 
mition,  and  no  man  fi'onid  execute  the  office, 
at  the  peril  of  being  arraigned  by  action  or  in- 
dictment for  every  judgment  he  pronounces. 
The  other  case,  which  is  in  2d  Modern,  218, 
is  as  strong  a  case,  if  an  action  oouM  be  main- 
tained against  a  judge  at  all,  as  any  that  can 
exist :  that  is,  an  action  for  false  imprisonment. 
The  defendant  pleaded  specially,  that  there  was 
a  commiflsion  of  Oyer  and  Terminer  directed 
to  him  amongst  others,  9cc.  and  that  before  him 
and  the  other  commissioners,  Mr.  Peon  and 
9Ir.  Mead,*  two  preachers,  were  indicted  for 
lieing  at  a  conventicle,  to  which  indictment 
they  pleaded  Not  Guilhr ;  and  this- was  to  be 
tried  oy  a  jury  whereof  the  plaintiff  was  one; 
and  that  after  the  witoesses  were  sworn  and 
examined  in  the  cause,  be  and  his  fellovrs 
found  the  prisoners,  Penn   and  Mead,  Not 
Guilty,  whereby  thev  were  acquitted ;  and 
^id  the  plaintiff  tnali  te  getterit  in  acquitting 
them  both  against  the  direction  of  the  C^urt  in 
matter  of  law,  and  against  plain  evidence,  the 
defendant  and  the  other  commissioners  then 
upon  the  bench  fined  the  jury  forty  marlcs 
a- piece,  and  for  non-payment  committed  them 
to  Newgate.    This  was  a  case  where  a  judge 
had  taken  upon  himself  to  fine  a  juryman,  be- 
cause he  did  not  find  agreeably  to  his  direction, 
and  had  commjtted  bim  to  Newgate.    Setjeant 
Goodfellow,  wbo  ewied  for  the   defendant, 
-aaid,  he  would  not  ofier  to  speak  to  that  point, 
whether  a  judge  can  fine  a  jury  for  girmg  a 
▼erdiet  contrary  to  evidence,  since  the  case  was 

<*  See  their  Case,  vol.  «,  p.  951,  and  Bn- 
AdTi  Case,  vol  6,  p.  999. 


so  lately  and  solemnly  resolved  by  all  the  judges 
of  England  in  BuHnell's  case,  that  he  could 
not  fine  a  jury  for  so  doing.  But,  says  he, 
admit  a  judge  cannot  fine  a  jury,  yet,  if  ha 
doth,  no  action  will  lie  against  him  for  so  doing, 
because  it  is  donees  a  judge:  but  the  Court 
told  him  he  need  not  labour  that  point,  but  de« 
sired  to  hear  the  anrument  on  the  other  side. 
In  this  manner  the  Court  would  not  suffer  the 
question  to  be  argued,  whether  an  action  would 
lie  or  not  against  a  judge  for  that  which  was 
done  by  him  in  that  character.  On  the  other 
side  it  was  urged,  that  what  was  done  was  not 
warranted  by  the  commission :  but  at  last  the 
whole  Court  say,  that  the  bringing  this  action 
was  a  g^reater  offence  than  fining  of  the  plain- 
tiff, and  committing  him  for  non-payment; 
and  that  it  was  a  bold  attempt  both  against  the 
government  and  justice  in  general.  Cord  Coke 
in  his  19th  Report,  25,  says,  that  the  reason 
and  cause  why  a  judge,  for  any  thing  done  by 
bim  as  a  judge,  by  the  authority  which  the 
king  has  committed  to  biro,  and  as  sitting  in 
the  seat  of  the  king,  concerning  his  justice, 
shall  not  be  drawn  in  question  before  any  other 
judge  for  any  surmise  of  corruption,  except  be- 
fore the  king  himself,  is  for  this:  the  kinjf 
binnself  is  de  jure  to  deliver  justice  to  all  his 
subjecte ;  and  for  that  be  himself  cannot  do 
it  to  all  persons,  he  delegates  his  power  to 
his  judges,  who  have  the  custoily  and  guard  of 
the  king's  oath.  And  forasmuch  as  tuis  con- 
cerns the  honour  and  conscience  of  the  king, 
there  is  great  reason  that  the  king  himself 
shall  take  account  of  it,  and  no  other.  My 
lord,  within  thearraval  of  St  Phillip's,  general 
Mestyn  was  ^iui/enii«  judge ;  there  was  no|Da«» 
gistrate  within  the  place  but  himself;  he  mighl 
appoint  another,  or  might  preside  himself,  ta 
decide  upon  offences  committed  within  that 
district,  it  was  so  stated  in  the  record,  that  it 
was  subject  to  the  immediate  order  of  the  go- 
vernor, and  no  judge  could  interfere  there  un- 

deputed  by  him  ;  so  that  ibe 


particularly 
lute  ffovemi 


1 

absolute  government  of  that  part  at  least  of  the 
island  rested  solely  in  his  hands.  He  acted 
there  under  an  authority  committed  to  him  bj 
the  king,  and  there  (  which  is  the  reason  in  the 
19th  Report  why  an  action  will  not  lie  against 
a  judge)  he  had  the  custody  and  guard  of  the 
king's  oath ;  and  therefore,  as  lord  Coke  sayf, 
if  he  acts  improperly  in  the  discharge  of  the 
functions  of  his  office,  he  is  accountable  to  the 
king  only,  and  no  other.  My  lord,  there  m 
another  case  in  the  Uw- books,  upon  which  I 
shall  beg  leave  to  lay  great  stress;  and  at 
present  1  am  not  aware  how  that  case  will  be 
distinguished,  so  as  to  make  it  inapplicable  Id 
the  present:  but  1  can  find  many  circumstancea 
even  in  that,  which  are  much  stronger  against 
the  determination  there,  than  any  that  exist  ip 
this  case  against  a  determination  in  iavoar 
of  the  defendant.  The  case  I  allode  to  ia 
that  of  Dutton  against  Howell,  in  ShoweHa 
Paribmeotary  CaMs,  t4 ;  that  iaa  writ  of  emr 
upon  a  judgment  given  in  the  King's-baach. 
ne  case  ftam  the  KconI  is  ihii }  IheplaiaMF 

4 


Fahrign)  v.  Muiti/n. 

A  Dutton,  for  thitl  he  nllh  seve- 

V  BNaulteil,  beu,  wDuaileil.  aoil  ini- 

d  bira,  aoil  look  anil  seized  hi*  gnuils, 

■isoDciI  the  |'l«>iitiir  for  tbree  m<inU)i. 

kpleiM  lofirtQiit  guilty,  aoil  as  (olLc 

R  iuslilicattiiii,thDl  llietMfnilaiit  al 

I*  ifUrernnr  of  BurbaJoe*,  auil  hcIs 

lit  conMiliitio^  liini  govcroar ;  lliai 

e  RiftlitDg  this  |Mteiit,  aiiil   before  the 

f  tiir  MHUlt,  the  defendant  arrived  ■( 

I,  and  did  lake  upon  him  and  exercise 

It  of  Ihil  anil  llie  olher  i^lBiids  in 

leal  •ni'nlitnied,    till  the  flrht  of  Miiy, 

''  ~    "liKd  licence  to  reluru  to  En|f  land  ; 

I    W  departure  h«   consiiiuted   tlie 

*  Im  hi*  deputy -gOTernor,  and  ihat  llie 

i)[ii*l  fu11uwlii){  the  delendant  arrival 

I,  in  England;  tbutthe  4ih  of  May, 

^M'l  drpiniirp,  the  plainiilT  took 

If  theadminiMralion  of  the  govern- 

e  i«Und  of  Darl>Bilues,  and  did  un- 

tatfiiMy   and  arbilrsiily  execute  ihal  gnietn- 

mtat  and  nSiee,  to  the  oppreMion  of  the  kioc's 

■utgrdti  Iliatal\«r  ibervturnof  liiedef.-odani, 

ill'   liUirjiilT   al  a  ri)»iicil  wib   charged   willi 

.   i;r  in  Ihe  adniinialnilinfinf  bis  olfice, 

1-^  ibe  OBlh  of  nffice,  not  obseriing' 

iia*i(^iion,  aMuming  the  tiile  of 

:^<>ii^riii<r     and    altering   decrepB  in 

■     ~...r,,  ,   ihat  il  was  ihennrdered  liy  Iheile- 

'  .-Uut  iiiid  c«u aril,  that 'the  plaiutifT  should 

'  Fomaiiilcd.     Tu  thi«  ihere  is  a  demurrer. 

Tliti  conn  judgtneni  was  giren  tar  the  plain- 

I  i  on  wUith  a  writ  of  eiror  t»as  brougiit  in 

I  ■'  Hmka  of  liords ;  and  though  the  parlicu  - 

ffftsana   of  the  judgment  Ju  the  Hunsa  of 

I   rtM  do  not  appear  further  than  can  be  col- 

-1^1  froo)  lUe  arguinenl,  yet  tliere  are  aereral 

-y^  in  tlic  i^umeul,  from  whence  it  may  be 

li^rinJ  UiHm  what  grounds  Ihe  jiid^metit  of 

'  •  Hoaae  of  l»rda  wt^nt.     It  wasargued  upon 

'  ;>arl  <<f  tlie  plaiotilT In  error, that  tbiiaotion 

ii;,'ain*l  him,  because  it  was  broiiij:lit 

.  Igr  lhat  which   he  did  os  a  Judge; 

•'  <-<<«'[ri«  10  be  ibe  lame  for  one  sort 

,;ii  anolher,  Bud  tbst  tlii«  (lersoD  was 

.;.,  .tijilf  a  gniemor,  end  so  had  all  the 

■itii  ul  a  goTL-Tiior.     As  lo  the  pl«a,  it  was 

railicd  lii«t«  »erp  seieral  inli>rniBlilieBln  lhat. 

''-  ••■••■14  it  niirlit  be  much  shorier  than  il 

"  11  ;  hut  ibat  il  suflicieDlly  >h«ned  what  the 

1  otitr  in  error's  auihortly   was.     Tlmt  this 

•  untieUiMI  lie,  because  the  tact  it  not  triable 

•  rt  1    III*  laws  Ihere  iimj  be  diffrreiit  from 

.      TU*id...  Di,  action  Res,  tlnlesi  il  ven  a 

'  ..'ii<  as  well  ni  causeless; 

i.'^.d  lhat  an  action  can 

■....rnor  or  liL^utenant of 

.    >iiiill>v  thesnine  reoMDii 

^iii  11:11   ir.   ...i-.i.i»c.     He  had    a  poucrtc 

rko  ju<lc<a<  'ki>'l  ilifrefore  tvas  more  than  t 

V-      Oib#r  tnnoua   alledgfii   ii)raiiihi  Iht 

.MioD  IviDg  bc-re  are,  first,  tiisi  all  tlm  reeordi 

<'.']  ctiiuMCi!  ars  ihrre  ;    secondly,  Ihe   lawi 

li  Tr  difff*  lh>m  wlint  Ihey  are  here ;  and  go- 

''^aeaWwMiM  he  very  neak,  and  die  pet' 

1  «tilb  Ikeni  eery  uneasy,  if 


A.  D.  1T75. 


f«» 


-ere  anbjecl  lo  lie  charged  with  actions  here  for 
iliat  tbey  do  in  those  countries.  In  the  argu. 
meut  ou  the  part  of  the  defendant  in  error, 
h  pains  are  taken  to  shew,  and  it  is  iusisled, 
Ibaltlie  lawof  Barbadoea  is  the  same  as  iheJai* 
of  England.  Aaotherthincthatisiherereliedbn 
lliat  Ibis  was  an  action  between  two  EnKlish- 
;n,  for  an  injury  done  by  one  Enghslimaa 
Bgoiualanotlter.  Thesesronndsare  strongly  r«- 
led  upon  on  Ihe  part  of  the  then  defendant  in 
rror ;  and  tbey  ahew  at  least  tbal  his  couusel 
houghl  these  diBtinclions  tery  necessary  antl 
nslerialin  order  losupportlheacliun  at  all:  for 
(bough  tl  is  denied  in  one  part  Ibat  the  jaws  <^ 
BnrlraJoes  were  the  same  as  in  England,  yet  on 
theeiher  side  ilisinslsled  tbey  were,  and  rhal  tiu« 
action  arose  belween  Eiigllshmun  and  English- 
man, and  tlial  therefore  the  aclinn  iiuglit  lo  ba 
maintained  in  Ibis  court.  The  Bouse  of  Lords 
Boally  determiaeil  lhat  the  aclion  could  not  |ia 
here,  and  the  judgment  was  giren  for  tlie  plaio- 
4iff  in  error.  A»  lo  tlie  form  of  the  plea,  it  was 
impossible  for  any  one  to  aay  a  word  in  (indi- 
cation of  lhat,  or  to  say  thai  Ihe  judgment 
could  go  upon  any  other  ground  than  llial  of 
ibe  dclcndaot's  being  gnvernor,  and  the  olTenca 
comfilaiued  of  committed  by  him  in  lhat  cha- 
racter. ThAt  was  Ibe  substance  of  the  case, 
and  upon  tbsl  the  judgmenl  of  Ihe  House  of 
Lnrds  was  Ibanded  j  for  os  lo  Ihe  plea,  il  ia  ad- 
mitted by  Ihe  counsel  for  tbedetendaul,  tbalia 
other  respects  it  was  bad  upon  the  lace  of  it. 
In  tiiBt  case,  one  argument  relied  on  is,  lhat  it 
wai  an  injury  commitled  by  one  Engliihman 
against  another.  Now  ibat  is  not  ilie  ca«e 
here :  for  the  |i1alDliff  himself  was  a  Minor- 
quia  ;  he  iraa  so  by  birth,  and  had  always 
lited  in  lhat  country.  My  lord,  in  Ibis  case, 
tlie  argument  cannot  bold,  that  llie  aclion  shall 
lie  because  Minorca  it  governed  by  ihe  same 
laws  OS  England^  for  it  is  olherwise,  and  it  Ja 
sUled  lo  be  goferned  by  Ibe  law  of  Spain, 
The  acts  upon  which  the  cnDiinilrnQnt  was 
founded,  in  the  case  of  Dulton  ami  Uowtll, 
Mere  done  by  the  iilainliff  in  the  choracler  of 
gOTecnor  ol  the  place,  which  is  an  ultjaclion 
against  that  case  that  will  not  hold  in  the  pre- 
sent ;  for  that  is  not  Ibis  case.  Mr.  Fabrigas 
neierstood  in  the  cliaracler  that  the  plaintiff  in 
thai  aciioo  did,  for  there  the  acts  complained 
of  were  done  by  him  iii  the  characler  of  go- 
vernor; andllut  was  urged  as  oneground  why 
il  should  not  be  caniassed  here.  Uut  ueilber 
of  these  distinctions  will  holil  in  the  present 
case  i  but  all  Ihe  innnnveuienccs  pointed  out 
against  the  action  in  thai  case  will  hold  rery 
■troDgly  in  tlie  preseul.  This  is  an  aclion 
brought  agaiail  the  detendanl  for  what  he  did 
BB  judge;  be  had  0  power  111  lhat  case  to  mak* 
judges  there,  and  therefore  be  was  something 
more  tlifin  a  judge ;  all  the  records  and  evi- 
dente  which  relate  to  the  transaction  ore  there, 
and  cnnont  be  brought  here)  Ihe  laivs  tbera 
are  ditferenl  from  what  they  are  in  this  coun- 
try ;  anil,  as  it  is  said  in  (be  conclusiou  of  lhat 
argument,  government  must  be  very  weak  in- 
deed, and  the. penon*  intrusted  wiih  ibcmreij 


807] 


14.  GEORGE  III. 


Actum Jor  Fake  Imprkonment*^ 


[SOS 


^neisy,  if  they  are  tbbject  to  be  chamd  with 
■ctiont  here  for  what  they  do  in  that  character 
ID  tbbse  cuuDtries.  My  lord,  iioless  that  case 
can  be  materially  distin^iiisbed  from  the  pre- 
•ent,  it  will  be  an  authority,  and  the  highest 
authority  that  can  be  adduced,  to  shew  that 
this  action  cannot  be  maintained,  and  will  be  a 
sufficient  authority  to  entitle  the  plaintiff  in 
error  in  this  cause  to  your  lordship's  judg- 
ment What  answer  may  be  given  to  that 
case,  or  distinctions  made  between  that  case 
and  the  case  now  before  the  Court,  I  cannot 
at  present  foresee ;  but  if  any  are  attempted, 
when  I  hear  them,  I  shall  be  at  liberty  to  give 
•uoh  answers  to  those  arguments,  as  may  occur 
|o  me  by  way  of  reply. 

Mr.  Peckham.  My  lord,  as  the  moderation 
end  mildness  of  gOTemorMostyn's  proceedings 
have  been  insisted  on  by  Mr.  Buller,  I  trust 
it  will  not  be  thought  irrelative  to  the  present 
question,  if  1  shortly  state  to  your  lordships 
the  nature  of  those  injuries  which  gave  birth  to 
the  action. 

It  appeared  in  evidence  on  the  trial,  that  Mr. 
Fabrigas  was  a  natural  born  subject,  being 
born  m  Minorca  subsequent  to  the  cession  by 
the  Spaniards  at  the  treaty  of  Utrecht,  and 
prior  to  the  capture  by  the  French  in  the  year 
1758 ;  that  he  was  a  roan  of  irreproachable 
eharacter  and  good  property ;  not  of  the  first 
class  of  nobility,  but,  to  borrow  an  expression 
from  colonel  Bidulph, '  what  we  should  call  in 
England  a  gentleman  farmer ;'  that  he  lived  in 
firiendship  with  the  first  noblesse  in  the  island ; 
and  that  he  had  a  father  living,  and  a  wife  and 
five  children. 

Thus  circumstanced  and  thus  situated,  be 
was  at  the  express  command  of  the  governor 
taken  from  his  house  by  a  party  of  soldiers, 
end  dragged  at  noon- day  through  the  streets 
ct'  Mahuu  as  a  criminal,  and  thrown  into  a 
^lungeon  appropriated  solely  to  capital  of- 
iemiers. 

It  appeared  likewise  in  evidence,  that  he  was 
eonfined  six  days  in  this  dungeon,  with  no- 
thing but  the  boards  to  lie  on,  and  with  no  other 
tustenaRce  than  bread  an<l  wattfr,  though  felons 
under  sentence  of  death  were  allowed  the  com- 
mon ft>od  of  the  island  ;  that  he  was  refused  the 
consolation  of  his  friends,  and  denied  all  inter- 
course with  his  family  ;  that  on  the  seventh 
morning  he  was  hurriiMl  aboani  a  ship,  without 
being  permitted  to  lake  leave  of  his  cliildren,  to 
eee  his  wife,  er  to  he  acconiiuotlated  with  money 
or  other  uecessiaries  for  his  subsistence ;  that 
during  this  wliule  time  he  had  heard  of  no 
charge  against  him,  he  had  been  confronted 
with  no  accuser,  he  had  not  even  seen  his 
judge :  yet  he  was  to  lie  banished  to  Cartha- 
gena  in  Spain  for  the  space  of  twelve  months. 
The  senteuce  was  faithfully  executed ;  and 
Mr.  Fabrigas,  having  experienced  that  distress 
which  a  moneyless  stranger  must  necessarily 
lie  reduced  to  in  a  country  whose  language  he 
did  not  understaod,  as  fortunately  for  himself 
ft  lUMzpeGtedly  to  go? ermr  tt^pttyn,  «icap«d 


from  the  Spaniards  :  1  say  unexpectedly,  my 
lord,  because  he  liule  thought  that  Mr.  ^«^ 
briifas  would  live  to  tell  an  English  jury  of  his 
sufferings  and  the  governor's  oppression. 

I  thought  it  necessary  to  state  these  fiiCts  to 
your  lordships,  that  you  might  judire  of  the 
mildness  of  that  treatment  which  Mr.  BuUer 
deemed  it  prudent  to  expatiate  on. 

It  now  becomes  requisite  for  me  to  state  the 
conduct  of  the  governor  through  the  subse- 
quent stages  of  his  very  extraordinary  defence  ; 
and  that  I  must  do  with  some  precision,  as  I 
mean  to  contend,  that  the  plaintiff  in  error  by 
that  defence  is  estopped  from  agiuting  the 
question  of  jurisdiction. 

The  declaration  was  delivered  in  Hilary 
term,  1773  ;  a  rule  to  plead  was  given,  and  a 
plea  demanded.  Had  the  governor  then  plead- 
ed to  the  jurisdiction,  the  question  would  have 
come  before  the  Court  on  a  demurrer ;  and  if 
that  had  been  determined  in  our  favour,  a  writ 
of  enquiry  would  have  been  executed,  and  Mr, 
Fabrigas  would  in  a  short  space  of  time,  at  a 
little  expence,  have  received  a  satisfaction  ade- 
quate to  the  injury,  and  would  have  been  en- 
abled to  return  to  his  friends  and  to  his  family. 
But  that  would  not  have  answered  the  purpose 
of  the  governor,  as  Mr.  Fabrigas  would  not 
then  have  been  delayed  in  England,  nor  have 
been  harassed  with  this  expensive  litigation. 

Had  the  governor  at  the  ex|nration  of  the 
four  days  piraded  in  chief,  he  might  then  have 
had  the  appearance  of  an  argument  in  his  ap- 
plication to  your  lordshi|>s ;  for  it  then  would 
have  been  competent  for  him  to  have  said,  *  I 
was  hurried  into  this  plea  before  I  had  time  to 
advise  with  my  counsel,  and  consult  upon  the 
propriety  of  aclmitting  the  jurisdiction.'  But 
ne  has  debarred  himself  even  of  this  shadow 
of  an  argument ;  for  instead  of  pleading  at 
the  usual  time,  he  applied  to  the  Court  of 
Common  Pleas  for  six  weeks  time  to  pleaili 
Here  then  was  an  admission  ef  tlie  jurisdic- 
tion ;  for  he  could  not  apply  for  time  to  plead, 
unless  the  Court  had  cognizance  of  the  matter. 
1  shall  presently  state  to  your  lordships  some 
cases,  whose  authority  cannot  be  shaken,  to 
prove,  that  even  after  imparlance  the  questioa 
of  jurisdiction  cannot  be  gone  into. 

But  this  was  uot  the  only  submission  to  the 
jurisdiction  of  the  Court ;  tor  he  then  applied 
t(»  put  off  the  trial  till  after  Easter  Term.  It 
would  have  been  nugatory,  it  would  have  beeo 
absurd,  to  have  prayed  the  Court  to  put  off 
that  trial,  which  they  had  no  |K>wer  to  try  at 
all.  When  Easter  Term  arrived,  the  governor 
made  a  second  attempt  to  postpone  the  trial ; 
but  the  Court  saw  through  his  design,  and, 
satisfied  that  he  did  it  onl)^  for  the  pur|»ose  of 
delay,  they  lieil  him  down  by  the  rule  to  try 
it  peremptorily  in  Trinity  Term,  and  that  be 
should  not  bring  a  writ  of  error  for  delay. 

When  he  saw  the  Court  of  Common  Pleat 
would  not  lend  him  their  iMiwer  for  so  Imse  m 
purpose,  lie  next  made  application  to  the  Court 
of  Exchequer  for  an  injunction  to  stay  pvo- 
ceediDgBi  and  a  biU  wu  filed  ia  Trioity  iW^ 


Tabtigat  v.  Mostyn. 

a  i&ctiule  IhM  iolcDtton  ;  bul  the  bill  »*s 
i-miaKd  on  arguinelil,  Hnd  the  goTcrnor  wu 
.:  k-oglb  Jriiifii  in  the  subsequent  sitlinifs  to 
MiL  f¥liRill.rMii«eCuneoii,the<lelenilHDl'B 
notr)  dU  nnt  nbjcti  (o  th«  juriBrliciluii,  ihey 
oi  oM  requni  ijie  leuined  juil|{e  to  nontuit 
UipliiDbff;  bul  tli«y  sufirrml  us  lo   |[°  'dI" 


biwl  iiiacle  fgooA  our  deula- 
re  tradable,  they  then  went 
bM  Lbra  jiutifieation,  nail  callpil  manj  wji- 
■«■!•  in  auiiiMiTt  nt'  it.  Biii  a  Tetdict  beiag- 
livul  for  Iha  pkinlilT,  they  icnilfred  a  bill  of 
oeqplton* ;  anil  lu  last  Mirtiaelma*  Term, 
Ihrr  apfiliMl  lo  tht  courl  of  Cuuitnon  Fleas  fnr 
a  »ew  Irtti  ;  lir«l,  li>r  exceM  of  darnairea ; 
mtMid\y,  btcaiue  llie  Court  bad  Dojutisdiction 
— diB  iDud  exiiaordiiiary  reaaon  |jerbaps  tbat 
••«  KBa  \pf*a  i  la  detire  a  seouiid  trial  b«- 
noM  Uie  L'oiirl  bad  no  juriBdiclioa  lo  trv  it 
MalL 

Govmor  BIuRtvn  ha>'mf(  m  aa  msDT  in- 
Hmm  ■  admitted  ine  jurjiidiclion  of  Ibe  Court, 
I  HMal  bcf;  leaie  hi  atnie  some  aulliorities  lo 
nsr  Inrdnhiji,  whith  prove  ihat  be  ia  now  loo 
bit  Id  lake  any  adiantage  of  a  defect  of  juris* 
dcnaii. 

TheftrsK^ielahall  mention  to yourlordshipa 

•  la  W(«Mnd  in  ibeyear  InokaJD  tbe  tsd  H.fi, 

.'-T,iiW»r«lhercTrBiuRiiecial  imparlance, 'lalvii 

.  noibiia  alte^tioaibus  el  eiceptinnibua,  latn 

it  l-reie  ijtiani  ad  narrBtionen';  and  IbeCoorl 

.iM  iMt  kIIdw  ibe  defeadaol'a  privilege,  be- 

I'V,  aaya  the  cnie,  by  imparling  be  has  ad- 

■   unl    ifie  juriidiclioQ  of   the  Court.      ThJH 

■'.nat  it  cunGrmed  by  lord  Coke,  iu  bis  cnm- 

'^1  on   ibe  I9Slh  aeclioD  of  LilllptDn,  where 

;-ikm^  of  a  pCTEOiial  action  he  says.  Ihree 

.n  are.  to  be  considered;  first,  whpn  the  de- 

-''zalilcl'eudi  Ibe  KTODij  and  force,  beinaketh 

■^t»W  •  p*'ty  to  ibe  mailer;    aecooilly,  by 

-'  dalfitcc  bf  the  ilamagf!*  he  aflirnieih,  that 

-t  I'Uibtiff  ia  able  tu  iiio  and  lo  recover  da- 

vmftm  upon  just  t-anie;    and  by  Ibu  latil  parr, 

ik.  •  M  dial  which  he  ought  lo  defend  when 

N^wiicn   he  aii{[bt,'  bt  aKrmelh  the  juria- 

teka  of  the  Cnurt, 

The  caMi  of  Barrin^oti  and  Tenablva,  13  C. 
1.  rvforlml  in  air  Thomas  tlaymood,  34,  ii 
•B3r  dew  on  tbi*  bead.  The  dclendnnt  after 
lapatlMicc  pleaded  lo  the  jurisdiction  ;  the 
■toialtfl  ilmiurred :  the  juif^menl  was,  that 
laAoitld  aaawer  over,  for  such  plea  cBODOt  be 
phatlirf  after  imparlance. 

The  next  caac  in  order  of  lime  is  repotted  in 
t  Mmim,  m,  Coi  and  St.  Albon's,  3S  Car,  2. 
i  piahiliitiaM  wu  prayeil  for  the  city  of  Lon- 
li^  kteaoN  tb«  dttendant  bad  oHered  a  plea 
b  Ikt  nriatietiun  ivhieb  had  been  refused. 
ImA  tUcT  {nance  Hale  »ud,  "  in  transilorv 
tttiDaa,  if  ilarjr  will  plead  a  matter  tbat  ariselh 
•dI  «f  iba  JMrmllctiun,  and  swear  it  before  im- 
f»ikttot,  aad  it  be  refused,  a  prohibition  will 
pi."  Tberv  was  n  case,  aitid  bi-i  lordship,  in 
•b«kil  was  ai)jitd)(cd  Ihat  the  jurisdiblionmual 
k  alcadcd  aod  <be  pica  aworn,  and  it  must 
Infin-c  toiparliwn.    Il  waa  also  agreed 


A.  D.  1775.  1910 

in  that  caae,  "  Ihat  Ihe  party  choold  nefcrho 
received  to  aui^n  for  ernir,  ihal  il  was  out  of 
the  juiisdiclinn,  but  it  muki  be  uleadrd."  I 
hare  in  rain  endeavoured  In  find  idii  raw ;  but 
it  ia  sufficient  for  n>y  purpone  to  nbnerve,  Ihat 
lord  chief  JRsIice  Hale  would  not  have  died  it 
unless  it  had  btvn  law.  If  llierrfiiTe  ihe  opi- 
nion of  that  Kreat  man,  solemnly  given  in  the 
eoiirl  of  King's-beocli,  issuibriritr.  I  am  Mi 
In  say.  that  jroverniir  Itl-islyn  ool  havio);  plead- 
ed lo  the  jurisdiction,  <:annut  now  assifpi  il  for 

In  a  few  year)  after,  lord  chief  justice  Hale 
was  ai(ain  called  upon  to  cunijiler  tbii  qneslion 
in  the  case  of  Maodvke  anil  Slint,  3  Modern 
3T3,  ea  Car.  'J.  There  waa  a  prohihilion  lo  the 
aheriff'a  court  of  London :  ihe  Biiir^eation  was, 
tiial  ihe  contract  waa  made  in  Mirldleitex, 
theretbre  the  cause  of  action  did  nut  arise 
wilhin  their  juriadiclion.  The  cliief  jiisiice 
and  justice  Wyndham  were  of  opiomn,  "  ihal 
after  ihe  delendant  had  admitted  ihe  juriidic' 
lion  by  pleading  !□  the  action,  eapecially  if 
verdict  and  judgment  past,  llie  court  will  not 
examine  whether  the  cause  of  action  did  arise 
oul  of  the  jurisdiction  or  not ;"  on  which  b 
prohibition  was  denied,  and  judgment  was  given 
for  the  plsinliS'.  I  cannot  di«tint{iiis)i  Ihi* 
from  the  present  case;  for  as  Ihe  Court  will 
not  examine  whether  Ihe  cause  of  acfi'in  did 
ariaeout  of  the  jurisdiction,  there  can  benn  ilif- 
ferCDce  whether  il  was  in  Midrtlesex  or  in  Mi- 
norca; and  that  question  cannot  now  be  asked, 
because  verdict  and  jurigmenl  have  pawed. 

Lord  chief  justice  Holt,  in  Llie  case  of  An- 
drews anil  Holl,  iilord  Kaymontl.  884,  said, 
tbat  he  was  counsel  in  tlie  case  of  Deoning  and 
Norria  (reportnl  in  2  Leviolz,  S43}  and  ihat 
the  Court  held  there,  "that  since  the  deleo- 
dant  had  admitled  the  judge  lobe  a  judge  by  a 

Clea  t*  the  action,  he  was  estopped  to  say,  that 
c  was  not  a  judge  afterwards."  If  Ihen  a  de- 
fendant, by  having  submilled  the  decision  nf 
his  cause  In  a  judjfe.  precluded  himself  from 
ohjecliog  to  bim  afterwanls,  bow  much  stranger 
ia  the  present  case,  where  the  itefendaol  baa 
Eubmilled  his  cause  to  the  determinatinn  of  a 
court  which  haa  cogni7:ince  over  all  tranaitory 
actions.  It  is  again  laid  down  by  lord  chief 
justice  rtoll,  '■  that  there  ought  to  be  no  plea 
to  ibo  jurisdictiiiD  after  imparlance,  and  Ihat  a 
apecial  imparlance  admila  the  jurisdiction. " 
Holt's  Reports,  Pasch.  S  W.  and  M. 

1  must  trouble  your  lordibipa  with  the  casa 
of  Trelawney  and  Willrams,  toshew,  thai  thers 
has  been  but  one  opinion  on  Imlh  sides  of  the 
hall  respecling  a  plea  to  the  juriidiclion  ;  and 
that  equity  and  common  law  bate  united  in 
saying,  tbat  if  the  jurisdiction  is  ootpteaded  to, 
it  must  be  afterwards  admitted.  This  case  is 
reported  iu  8  Vernon  1113,  Hil.  1704.  The 
plaintiff  prayed  an  account  relative  to  a  tin-set ; 
ibedelrndant  Iniisled  that  he  ought  lo  have 
been  sued  in  the  Stannary-court.  The  lord- 
keeper  decreed  an  account;  nod  aa  to  Ihe  «b< 
jecliim  Ihat  the  plaintiff  nui,'bt  l( 
the  8lau  nary -court,  be  said,  "  ' 


SU] 


14  GEORGE  III. 


Action Jbr  False  Imprisonment^-' 


[212 


of  its  jarisdiclion,  the  defeDdaot  must  plead  to 
the  jurisdictiuD,  and  not  object  to  it  at  the 
hearing." 

There  are  a  great  variety  of  casea  tendini;  to 
establish  this  p«*8itioD,  that  when  a  defendant 
has  once  submitted  to  the  jurisdiction,  he  has 
for  ever  precluded  himself  from  objectinfif  to  it. 
To  state  them  all,  after  the  great  authorities  1 
have  mentioned,  would  be  tf»  multiply  the  wit- 
sessei  without  strengthening  the  testimony  :  I 
■ball  therefore  only  site  a  few  passages  from 
lord  chief  baron  Gilbert's  History  of  the  Com- 
mon Pleas,  which  are  decisi?e  upon  this  part 
of  the  argument.  In  page  40,  speaking  of 
the  order  of  pleading,  he  says,  "  the  defendant 
first  pleads  to  the  jurisdiction  of  the  Court ; 
secondly,  to  the  person  of'  the  plaintiff;  and 
thirdly,  to  the  count  or  declaration.  By  this 
order  of  pleading,  each  subseqoeut  plea  admits 
the  former.  As,  when  he  pleads  to  the  person 
of  the  plaintiff,  he  admits  the  jurisdiction  of  the 
Court ;  for  it  would  be  nugatory  to  plead  any 
thing  IB  that  court  which  has  no  jurisdiction  in 
the  ease.  When  he  pleads  to  the  count  or 
declaration,  he  allows  that  the  plaintiff  is  able 
to  come  into  that  court  to  implead  liiiii,  and  be 
may  be  there  properly  impleaded."  Be  lays 
it  down  in  a  subsequent  part  of  his  treatise  (p. 
148,)  as  a  positive  rule  of  law,  that,  **  if  a  de- 
fendant pleads  to  the  jurisdiction  of  the  Court, 
he  must  do  it  inttanter  on  his  appearance; 
for  if  he  imparls,  he  owns  the  jurisdiction  of 
the  Court,  by  craving  leave  of  the  Court  for 
time  to  plead  jn,  and  the  Court  shall  never  be 
ousted  of  its  jurisdiction  afler  imnarlance." 
IV hen  1  find  tnis  doctrine  in  our  old  law-books, 
when  I  see  it  ratified  in  modern  times,  and 
stamped  with  the  authorities  of  Coke,  Hale, 
Holt,  and  Gilbert,  1  am  warranted  in  saying, 
that  goveriHtr  Moslyn  cannot  now  agitate  the 
question  of  jurisdiction  :  and  if  he  cannot,  the 
judgment  must  be  affirmed. 

Notwithstanding  which,  I  have  no  objection 
to  follow  Mr.  BuTler  through  the  grounds  of 
argument  that  he  has  adopted;  and  J  shall 
endeavour  to  prove, 

That  an  action  of  trespass  can  be  brouglit  in 
England  for  an  injury  done  abroad : 

That  Mr.  Fabrigas  is  capable  of  bringing 
such  action : 

And,  that  governor  Mostyn  may  be  the  sub* 
ject  of  it. 

It  cannot  be  contended,  but  that  an  action  of 
trespass  is  a  transitory  action,  and  may  be 
brought  any  where :  *<  all  personal  actions," 
says  lord  Coke,  **  may  be  brought  in  any 
county,  and  laid  any  where."    Co.  Litt.  282. 

In  the  earl  of  Derby's  case,  12  Coke,  the 
chancellor,  the  chief  juntice,  the  master  of  the 
Rolls,  and  iustices  Dodderidge  and  WiOch,  re- 
solved, **  that  for  things  transitory,  although 
that  in  truth  they  be  within  the  county  pala- 
tine, the  plaintiff  may  by  Uw  alle<l:^e  them  to 
be  done  in  any  place  within  England ;  and  the 
defendant  may  not  plead  to  the  jiiriMliction  of 
the  Court,  that  thev  were  done  within  the 
muoty  psUtifie."    This  doctrine  is  not  coo* 


fined  to  counties  palatine ;  for  lord  Coke,  in  his 
comment  on  Littleton,  $61,  6,  says,  **  that  ao 
obligation  made  beyond  the  seas  at  Bour- 
deaux,  in  France,  may  be  sued  here  in 
England  in  what  place  the  plaintiff  will.** 
Captain  Parker  brought  an  action  of  trespass 
and  false  imprisonment  against  lord  Clive,  for 
injuries  received  in  India,  and  it  was  never 
doubted  but  that  the  action  did  lie.  Even  at  this 
moment  there  is  an  action  depending  between 
Gregory  Cojimaul,  an  Armenian  merchant, 
and  governor  Verelst,  in  which  the  cause  of 
action  arose  in  Bengal.  A  bill  was  filed  by 
the  governor  in  the  Exchequer  for  an  injunc- 
tion, which  was  granted  ;  but  on  appeal  to  the 
House  of  Lords,  the  injunction  was  dissolved. 
The  supreme  court  of  judicature,  by  dissolving 
the  injunction,  acknowledged  that  an  action 
of  trespass  could  be  maintained  in  England, 
though  the  cause  of  action  arose  in  India. 

The  next  point  to  be  considered  is,  whether 
tliere  is  any  disability  attending  the  person  of 
Mr.  Fabrigas,  that  incapacitates  him  from  bring- 
ing this  action.  But  it  will  be  requisite  for  roe 
first  to  state,  that  governor  Mostyn  pleaded  not 
guilty,  and  then  justified  what  he  had  done  by 
alledging,  that  the  plaintiff  had  endeavoured  to 
create  mutiny  among  the  troops ;  therefore  he, 
as  governor,  had  a  right  to  imprison  and  ba- 
nish him.  Your  lordship  observes,  that,  ac- 
tionling  to  his  own  plea,  he  does  not  pretend  to 
justify  what  he  has  done  as  governor  merely 
from  the  plenitude  of  his  power,  but  from  the 
necessity  of  the  act,  because  the  plaintiff  had 
endeavoured  to  create  mutiny  and  sedition. 
The  learned  judge  who  tried  the  cause,  fore- 
seeing the  importance  of  this  justification,  re- 
quested the  jury,  at  the  same  time  they  brought 
in  their  verdict,  to  find  whether  the  governor's 
justification  had  been  proved.  The  jury  found 
a  verdict  for  the  plaintiff,  with  3,000/.  damages, 
and,  that  the  plaintiff  had  not  endeavoured  to 
create  mutiny  or  desertion,  or  had  acteil  in  any 
way  tending  thereto. 

In  consequence  of  that  decision,  the  question 
now  is,  whether  Mr.  Fabrigas,  a  man  perfectly 
innocent,  can  bring  an  action  against  gover- 
nor Mostyn  for  this  wanton  and  unparalleled 
injury  ? 

As  the  law  grants  redress  for  all  injuries,  so 
it  is  open  to  all  persons,  and  none  are  excluded 
from  bringing  an  action,  except  on  account  of 
their  crimes  or  their  country.  Littleton  says, 
there  are  six  niaiiuer  of  peritons  who  cannot 
bring  actions  :  Mr.  Fabrigas  is  not  included  in 
either  of  those  descriptions.  The  only  persod 
that  can  bear  the  least  resemblance  to  liim  is 
an  alien,  who,  Littleton  says,  to  be  incapaci- 
tated from  bringing  an  action,  must  be  born  oat 
of  the  ligeance  of  the  king.  Lord  Coke,  in  his 
comment  on  that  passage,  observes,  that  **  Lit- 
tleton saith  not,  out  ot  the  realm,  but  out  of 
the  ligeauce;  for  he  may  be  bom,  says  Coke,' 
out  of  the  rtfslm  of  England,  yet  within  tb« 
ligeance,  and  shall  be  called  the  king's  liege- 
man, for  ligeut  is  ever  takea  for  a  natond-bora 
subject."    Co.  Litt.  129. 


813] 


Pabrigat  v.  Mottyh. 


A.  D.  1773. 


rsi4 


Mr.  Fabrigas  was  boro  in  Minorca  subse- 
fMol  to  the  ceaaioD  of  Spain,  consequently  be 
if  a  iuuaral-born  subject ;  every  natural-born 
Mbiect,  accordinnf  to  lord  Coke,  owes  alle^ance 
li  me  king ;  allegiance  impliea  proit* rtii>n,  the 
iM  is  a  necessary  consequence  tif  tbe  other ; 
ihekiiigrof  England  can  protect  only  by  his 
kai ;  bv  tlia  laws  of  £ng:land  tiiere  is  no  in- 
JHj  willioot  a  remedy  ;  the  remedy  for  false 
■friaooment  and  banishmf*nt  is  an  action  of 
fecipBsa,  w  bich  is  a  transitory  action,  and  may 
be  btoogbt  an V  where,  therefore  riiBrbil)*  brought 
m  tbe  city  of  London,  where  this  action  was 
aeloalljr  tried,  and  Mr.  Fabri|pi8  recovered 
3,0001.  damages.  I  hope  your  lordtthips  will 
JHtii^  me  in  saying,  that  this  is  a  fair  deduc- 
JilB  men  eatablisbed  principles. 

Coke  (Co.  Litt.  130),  mentions  three  things 
vbcraby  every  sdbject  is  orote cted,  *  rex,  lex, 
'  et  reacripta  regit*  ;*  and  he  adds,  **  that  he 
that  ia  out  of  the  protection  of  the  king,  cannot 
ka  aided  or  protected  by  the  king's  law,  or  by 
tbe  bing's  writ."  The  natural  inference  to  be 
dnwB  mm  thence  is,  that  he  who  is  under  the 
blag's  protedion  may  be  aided  by  the  king*s 
law,  Mr.  Fabrigas  is  under  the  king's  pro* 
Iselioo,  because  he  owes  him  allegiance,  there- 
ktt  be  may  be  aided  by  the  king's  laws ;  con- 
ssfseoUy  is  warranted  in  bringing  this  action, 
lbs  only  aid  the  laws  of  England  can  afford  bim 
fcr  that  injury. 

Mr.  Buller  has  mentioned  the  case  of  Pons 
mk  Johoaoo,  lieutenant-governor  of  Minorca, 
aM  aeefna  to  rely  on  wbat  was  said  by  lord 
faaden  <mi  that  occasion.  If  my  memory  does 
Ml  aialMid  roe,  tbe  plaintiff  could  not  make 
fiad  bia  case,  being  unable  to  prove  Mr.  John- 
■i^a  band-writing  to  the  order  for  the  fiscal  to 
flMBil  bim,  and  the  question  of  jurisdiction 
ais  not  SLgitated ;  but  if  it  had,  however  re- 
ijpsdable  lord  Camden's  opinion  ever  will  be, 
m  it  was  only  the  opinion  of  a  judge  at  Nisi 
hies.  And  according  to  Mr.  Buller's  own 
Urie  of  tbe  case,  he  makes  lord  Camden  con- 
ftsi,  that  an  action  might  lie  in  a  transaction 
batween  subject  and  subject.  That  concession 
iisafficieot  for  me;  for  1  have  your  lordship's 
swa  words  to  prove,  that  Mr.  Fabrigas,  being 
hsn  in  a  conquered  country,  is  a  subject. 

Id  tbe  kinff  and  Cowle,  2  Burr.  868,  your 
Isrdsbip,  apeaking  of  Calvin's  case,  said,  **  the 
fMStion  was,  whether  the  plaintiff  Calvin,  b<»rn 
ia  Seollaod  after  the  descent  of  the  crown  of 
England  to  king  James  the  first,  was  an  alien 
hsm,  and  consequently  disabled  to  bring  any 
ifal  or  personal  action  for  any  lands  within  the 
italm  of  England ;'!  and  your  lordship  added, 
**  bat  it  never  was  a  doubt  whether  a  person 
koni  in  tbe  conquered  dominions  of  a  country 
iisobieei  to  the  king  of  the  conquering  couu- 
ky."  From  this  two  points  are  gained  :  first, 
tint  Calvin,  though  born  in  Scotland,  was  not 
•a  aUeOy  and  might  bring  a  real  action  ;•  and 
that  there  never  was  a  doubt,  but  that  a  person 
Urn  in  a  conquered  country  waa  subject  to  the 
esaqveror.  Aa  therefore  tbe  twelve  judgea  de- 
that  CalFin  could  bring  a  real  actiooy 


I  because .  he  was  not  an  alien ;  certainly  Fa- 
!  briufas  may  bring  a  transitory  action,  as  he  ia 
a  subject,  being  bom  in  a  country  that  waa 
conq  lereil  by  the  state  of  Great  Britain. 

There  is  an  anonymous  case  in  1  Salkeld, 
404.  4  Ann.  A  bill  was  brought  in  Chancery 
to  foreclose  a  mortgage  of  the  island  of  8arke : 
the  defendants  pleaded  to  the  jurisdiction  of  the 
court,  viz.  that  the  island  of  Sarke  was  governed 
by  the  laws  of  Normandy  ;  and  it  was  objected, 
that  the  party  ought  to  sue  in  the  courts  of  the 
island,  an-i  appeal.  On  the  other  side,  it  was 
said,  that  if  the  person  be  here,  he  may  be  sued 
in  Chancery,  though  the  lands  lie  in  a  county 
palatine,  or  in  another  kingdom,  as  Ireland,  oir 
Barbadoes.  Lord-keeper  Wright  over-ruled 
the  plea,  saying,  *<  that  the  Court  acted  against 
the  person  of  the  party  and  his  conscience,  and 
there  might  be  a  failure  of  justice  if  the  Chan- 
cery would  not  hold  plea  in  such  a  case,  the 
party  being  here."  How  much  stronger  then 
is  the  present  case  ?  for  this  is  a  transitory  ac- 
tion that  may  be  brought  any  where;  Mr.  Fa- 
bngas  on  the  spot  to  bring  it,  and  governor 
Mostyn  in  England  to  defend  it. 

The  case  Mr.  Buller  has  cited,  of  the 
East- India  Company  and  Campbell,  admits  of. 
a  short  answer  ;  for  had  the  defendant  con- 
fessed  the  matter  charged,  he  would  have  con>- 
fessed  himself  to  be  guilty  of  a  felony ;  and  the 
humanity  of  the  laws  of  England  will  noi 
oblige  a  man  to  accuse  himself:  but  this  is  not 
a  pttbHc  crime,  but  a  civil  injury.  As  Mr.  Bul- 
ler has  gone  to  the  East- Indies  for  a  case,  I 
shall  be  excused  mentioning  the  case  of  Ram- 
kissenseat  and  Barker,  lAtkyns,  51,  where 
the  plaintiff  filed  a  bill  asrainst  the  representa- 
tivea  of  the  governor  of  Patna,  for  money  due 
to  him  as  his  banyan.  Tbe  defendanta  plead- 
ed, that  the  plaintiff  was  an  alien  born,  and  an 
alien  infidel,  and  therefore  could  have  no  suit 
here :  but  lord  Uardwicke  said,  as  the  plaintiff's 
was  a  mere  personal  demand,  it  wss  extremely 
clear  that  he  might  bring  a  bill  in  this  court ; 
and  he  over-ruled  the  defiendant's  plea  without 
hearing  one  counsel  of  either  side.  As  there- 
fore lord  Hardwicke  was  of  opinion,  that  by  the 
laws  of  England  an  alieu  infidel,  a  Gentoo  mer- 
chant, the  subject  of  the  great  mogul,  could 
claim  the  benefit  of  tbe  English  laws  against 
an  English  governor  for  a  transaction  in  a  fo- 
reign country ;  I  trust  that  your  lordships  will 
determine,  that  Mr.  Fabrigas,  who  is  neither 
an  infidel  nor  an  alien,  but  a  subject  of  Great- 
Britain,  may  bring  hia  action  here  for  an  injury 
received  in  Minorca. 

The  case^of  the  countess  of  Derby,  Keilway 
202,  does  not  affect  the  question ;  for  that  was  a 
claim  of  dower,  which  \h  a  local  actipn,  and  can* 
not,  as  a  transitory  action,  be  tried  any  where. 
The  cases,  mentioned  by  Mr.  Buller,  from 
Latch  and  Lutwyche,  were  either  local  actions, 
or  questions  upon  demurrer,  therefore  not  ap- 
plicable to  the  case  before  tbe  Court;  for  a 
party  may  avail  himself  of  many  things  upon  a 
demurrer,  which  he  cannot  by  a  writ  of  error. 

Mr.  BuUer's  endeavouring  to  confound  Uraa- 


SIS] 


14  GEORGE  m. 


Ad^iomjar  Fcise  Jtnjpruenmtnt'— 


[S16 


■itorj  with  local  action  ,  must  be  my  apoloey 
for  mcfDtioninflf  another  rate  in  iiupport  of  the 
distinction.  The  case  I  ullude  to  is  Mr.  Skin- 
ner's, which  was  referred  to  the  tweWe  judflies 
/roin  the  council-board.  In  the  year  1657, 
when  trade  was  open  to  tKe  East- Indies,  be 
possessed  liimself  of  a  house  and  warehouse, 
which  he  filled  with  ^oods  at  Jamby  ;  and  he 
purchased  of  the  kinnf  of  Great  Jamby  the 
islands  of  Baretha.  The  af^ents  of  the  East- 
India  company  assaulted  bis  person,  seized 
his  warehouse,  carried  away  his  goods,  and 
took  and  possessed  themselfes  of  the  islands  of 
Baretha.  Upon  tiMs  case,  it  was  propouniled 
to  the  judges,  by  an  order  from  the  king  in 
council,  dated  the  12th  April  1666,  whether 
Bf  r.  Skinner  could  have  a  full  relief  in  any  or- 
dinary court  of  law  P  Their  opinion  was,  **  that 
his  mtjesty's  ordinary  courts  of  justice  at 
Westminster  can  -  gif  e  relief  for  taking  away 
and  spoiling  his  ship,  goods,  and  papers,  and 
assaulting  and  wounding  his  person,  notwith- 
atanding  the  same  was  done  beyond  the  seas : 
but  that  as  to  the  detaining  and  possessing  of 
the  house  and  islands,  in  the  case  mentioned, 
he  is  not  relierable  in  any  ordinary  court  of 
justice." 

Your  lordships  will  collect  from  this  case, 
that  the  twelve  judges  held  that  an  action  might 
be  maintained  here  for  spoiling  his  goods,  and 
aeizing  his  person,  because  an  action  of  tres- 
pass is  a  transiterv  action ;  but  an  action  could 
not  be  maintained  for  possessing  the  bouse  and 
land,  because  it  is  a  local  action. 

I  trust  I  have  proved  that  an  action  of  tres- 
pass may  be  brought  here  for  an  injury  re- 
ceived in  Minorca ;  and  that  Mr.  Fabri^,  a 
natural 'born  subject,  is  capable  of  bnnging 
•uch  action.  The  only  remaining  question  is, 
whether  Mr.  Mostyn,  as  governor,  can  tyran- 
nize over  the  innocent  inhabitants  within  his 
government,  in  violation  of  law,  justice,  and 
umani^,  and  not  be  responsible  in  our  courts 
to  repair  by  a  satisfbctioii  in  damages  the  injury 
be  has  done  ?  Mr.  Buller  has  contended,  that 
general  Mostyn  governs  as  all  absolute  sove- 
reigns do,  and  that  *  stet  pro  ratione  voluntas* 
is  the  only  rule  of  his  conduct.  I  did  not  ex- 
pect to  hear  such  an  assertion  advanced  in  this 
court.  From  whom  does  the  governor  derive 
this  despotism  ?  Can  the  king  delegate  abso- 
lute power  to  another,  which  he  has  not  in 
himself?  Can  such  a  monster  exist  in  the 
British  dominions  as  tyranny  uncontrouled  by 
law  ?  Mr.  Buller  asserts,  that  the  governor  is 
accountable  to  God  alone ;  but  this  Court  1 
hope  will  teach  him,  that  he  is  accountable  to 
his  country  here,  as  he  must  be  to  his  God 
hereafter,  ff»r  this  wanton  outrage  on  an  unof- 
fending subject.  Many  cases  have  been  cited, 
and  much  argument  adduced,  to  prove  that  a 
man  is  not  responsible  in  an  action  for  what  he 
has  done  as  a  jadge.  I  neither  deny  the  doc- 
trine, nor  fball  endeavour  to  impeach  the 
casea ;  but  I  most  obeerve,  that  they  do  not 
affect  the  present  question.  Did  goTemor 
Hoityn  rit  u  jodginait?  Did  ke  hear  toy  ac- 


cusation P  Did  he  examine  a  witnesa  P  Did  he 
even  see  the  prisoner  P  Did  he  follow  any  rule 
of  law  in  any  country }  *  Stet  pro  ratione  vo- 
luntas' was  his  law,  and  his  mercy  was  twelve 
months  banishment,  to  an  innocent  individual. 

As  Mr.  Buller  has  dwelt  so  much  «|ion  the 
case  of  Dutton  and  Howell,  it  will  be  ex|»ected 
that  I  take  some  notice  of  it.  1  need  not  go 
over  the  case  again,  as  it  has  been  already  very 
accurately  stated;  but  1  must  beg  leave  to 
read  the  reasons  which  were  given  with  the 
printed  case  to  the  Lords,  before  it  came  on  to 
ne  argued  in  the  House  of  Peers.  It  is  stated, 
that  sir  Richard  Dutton  ought  to  have  the 
judgment  that  was  obtained  against  him  below, 
reversed  ;  for 

1st,  That  what  he  did,  he  did  as  chief  gea 
vemor,  and  in  a  council  of  state,  for  which  he 
ought  not  to  be  charged  with  an  action.  If  he 
shall,  it  may  be  not  only  the  case  of  sir  Richard 
Dutton,  but  of  any  other  chief  governor  or 
privy -counsellor  in  Scotland,  Ireland,  or  else* 
where. 

8.  What  was  done,  waa  in  order  to  bring  a 
delinquent  to  justice,  who  waa  tried  in  BarSa- 
doea  and  found  guilty ;  and  if  for  this  he  shall 
be  charged  with  an  action,  it  would  ,be  a  dis- 
couragement to  justice. 

d.  What  was  done,  was  done  in  court;  for 
ao  is  a  council  of  state,  to  receive  complaieta 
against  state  delinquents,  and  direct  their  triala 
in  proper  courts.  What  a  judge  acta  in  court, 
as  sir  Richard  Dutton  did,  no  action  lieaagaioit 
him  for  it. 

4.  There  never  waa  such  an  action  aa  thii 
maintained  against  a  governor  for  what  bf  did 
in  council ;  and  if  this  be  made  a  preoedeiit,  it 
will  render  all  governments  unsafe. 

5.  If  a  governor  of  a  plantation  beyond  the 
aeas  shall  be  charged  with  actions  here,  for 
what  he  did  there,  it  will  be  impossible  for  him 
to  defend  himself:  first,  for  that  all  recordi 
and  evidences  are  tliere:  secondly,  the  laws 
there  differ  in  many  things  from  what  they  are 
here. 

Though  the  first  part  of  this  reason  seems 
to  operate  in  favour  of  governor  Mostjm,  yet 
it  goes  no  farther  than  this ;  that  if  an  aetm 
is  brought  here,  it  will  be  impossible  for  him 
to  defend  himself.  The  latter  part  ahewa  the 
meaning  of  the  whole;  that  is,  if  an  action  is 
brought  here  against  the  governor  for  euj 
thing  done  by  him  in  his  judicial  capacity, 
then  he  will  not  be  able  to  defend  himself,  «s*> 
cause  all  the  records  and  evidencea  are  there. 
This  clearly  proves,  that  it  refers  to  what  he 
did  as  judge,  otherwise  there  could  have  been 
no  occasion  to  have  mentioned  the  reoor4p 
being  there. 

These  reaaons  roust  have  been  the  grmiBi 
of  the  counsers  argument,  and  the  whole  is 
bottomed  in  sir  Richard  Dutten's  having  acted 
with  hia  council  in  a  judicial  capacity.  I  take 
no  notice  of  the  arguments  of  counaH,  as  rt^ 
ported  bjr  Shower,  because  it  can  be  no  an- 
tliority  Ar  thia  court.  1  shall  only  ohacffTS^ 
that  u  reaped  to  the  junsdidiooy  wbieli  mm 


Fabrigat  v.  Mosiyn. 

m  tottcheJ  on,  Ihat  tlie  mu«rltoD  uf 

A  tor  ibe  Uctendtnl  iu  errnr,  Hfiirm- 

wuJtctinn,  ii  he  goul  lUlliorily  for 

I  uf  ii  by  sir  Uiohard  Duiiod'e 

r,  biiller.     Tlie  repnrt  ii  gjkal 

*  ftriMinili  ii4  Uie  JudufDient;   Jl  onlj 

Ibal  the  action  wan  rererseil;"    liul 

I   vonl   thni   ilie  BCliou  ciiuld   ont  be 

111  I  teiilure  lo  ufBnii,  Uial  iliig 

!  Irwl  rrtrinbluice  lu  Ihe  pre- 

M;  duty  calli  OD  roe  lo  dnvr  the  iuTi- 

■  puvIIH. 

mur  DultuD  ul  wllh  his  oouocil,  to 
il  «iii|uira  iu  the  supreme  cuurl  of  ju- 
a  llarbidoei : 

ir  Mtniyn  »t  neither  *s  ■  mililtry 
il  jud^e. 
t.  F«bfl|[M  was  not  brau^ilil  belbre  him, 
'It  he  Becuard  by  any  man  : 

iililicly  BccQKd  be- 

•n  iaio  B  dimgeon, 
nib  tlie  mom  uiibeard-nrgeTerily; 
nil)  oDJy  rooBiied  for  tne  . 
_  hilt  |ieri>uo . 

m  biiiishedrarliTelTeiDniitbs 
0  8|itni»b  duiniiiioiiit : 
jrJobn  wM  kriil  in  cualoily  for  11  diys, 
•  MnU  ba  hroufjhl  to  bia  trial ; 
r.  Fabriga*,oiitlje|;<>r«rnur'ijii«lilicAlian, 
bund  to  lie  lanoceni : 
Sr  John  Wiiham,  when  bronchi  beforr  Ibp 
wartor|{«ieralwsBioD>,  woifouud  ({uiliy.snd 

The  gavernor  of  Btkri'adoM  followed  Ihe  iawa 
rfBwiMloes'. 

The  KDTprnor  nf  MInnrca  acted  in  dinme- 
k«tJ  opimfiliun  tn  all  latrs.  nnil  in  viulatioD  of 
is  •MtmldicliilMof  homaiiily: 

Sa  Ri^liard   Duitou  let  the  law  take  its 

It  out  of  bia  way  to 

H>«iny  abt-wM  the  dilTerenre  betneeu  the 
i*a  caB««,  permit  me  In  mmlion  an  obierra- 
iii«  of  loint  «birl*-juitic«  <le  Grey,  \a  bia  nrii- 
aam  an  Ihc  malioo  for  a  new  trial.  "  If  Ibe 
C*>n«or  liad  tvcured  lilm,"  said  bis  lonlthip, 
"  asy,  if  be  bad  Wrcly  committed  him,  that  lie 

a  hi  ba*c  been  atntnable  to  jusiice,  and  if  be 
wnn>p<lial*ly  ordm^  a  proaecullon  upon 
uy  wn  '>(  bi«  i-nuduci,  il  would  have  been 
asMbcr  ijUMioD:  bitt  tbe  cnveroor  knew  he 
taaU  DO  morn  tmpnsoa  him  Ii>r  a  Iweliemonlb, 
(iind  lb*  liaBiahnwnl  far  a  year  i»  a  conlinualion 
tl  tbe  ortcina)  impriaoiimeni)  Iban  ibiit  be 
■MiU  iaAtcl  tbf  t0it<ire." 

La«4  cbiefguatice  de  Grey  llitn  undoubtedly 
lb«agb(  (bat  Bo*«Tnor  Moctyn  had  actetl  ille- 
ttUjf :  ifao,  I  hope  1  nball  be  able  to«bew, 
iiiil  bt  H  mffleiiable  to  Ibe  courlaof  law  in 

Lflrri  MlBmnnt't  ciae,  iu  3  Salkeld  695, 
'     R.  Pvek.  IU  W.  $,  evince*,  tbat  a  ico- 

rndrkbmad  ■■  rMpoutihle  here.  "Tbeal- 
'  riiey-f •neral  mnifd  tor  a  Itial  at  bar  ibe  last 
•,^4ky  ■■  llie  tattu,  ia  an  Mtioa  aKaiufl  ilia 


A.  D.  177S. 


[918 


clUe 


gOTemor  of  New-York,  for  niatlerdoneby  him 
as  §;o>ernor,  and  sTanird,  because  Ibe  Itingde- 
fended  it."  I  collect  fi'am  Uiie  caw,  that  Ihe 
Btlurney-||;eaeral  knew  ibe  Court  bad  jurisdie* 
lion,  or  be  would  not  ba<e  nude  the  motion  ; 
and  tbe  Court  wonld  nut  haie  granted  It,  if 
they  bail  not  been  Icgully  impowered  lo  Iry  it. 
The  IdcitlHInre,  in  U>e  aame  year  (13  VV.  3, 
cup.  1^,)  enacted,  that  govettntn  beyund  Ihe 
sea  iliould  be  tried  in  the  King''a-beuch,  or  in 
aucb  cnuiily  as  shall  be  asiigued  by  bis  ma- 
jesty, by  good  anil  lawful  men,  lor  ofl'encea 
cuainiitlcd  in  Ilieir  govtfiimeols  abroarl  againit 
Ihe  kioi;'s  suhjec Is  there.  Aa,  by  tbe  common 
law,  ao'  indiclineat  could  be  preferred  only  in 
that  county  where  tbe  offence  was  commiiled, 
goveraiirs  abroad  were  not  crimiiiBlly  amena- 
ble llll  Ibis  act  had  passed.  When  the  legisla- 
ture so  carefully  provided  la  bring  gorernon  to 
juitice  for  Ibe  olTcnceB  they  mi|[bl  cnmmil  in 
their  governments,  ihey  would  indisputably, 
by  the  same  law,  have  protested  the  suhjecla 
from  civil  injuries,  had  ibey  not  bnown  Ibat 
aucb  pRitiaioo  was  unnecessary,  and  Ihat,  by 
the  common  taw,^  [lersnnnl  actions  iDiiibt  be 
brought  in    Bnu'Und  ;    of  which  lord   Betla- 

In  Michaehnas  lerm,  11  Geo.  3,  1737,  Ste- 
phen Conner  bmughl  ao  action  iigainsi  Joseph 
Kslirne.  KOternnr  ul  Gibraltar:  aud  be  elated 
in  btH  declaration,  tliat  he  was  a  iimster  c»t- 
penler  of  tbe  iiRice  of  ordnance  at  Gibraltar  ; 
ibnl  e''ivernor  S»hine  tried  hiiti  by  a  cuurl-mar- 
iial,  Iu  which  be  was  nut  sulijeci ;  and  that  be 
underwent  the  senlence  of  reoeiviog  900  laihes, 
and  that  he  was  compelleil  to  depart  from  Gib- 
raltar, which  he  taiil  to  his  daniage  of  lO.OUOf. 
Tbedefeudaiit  pleaded  Nut  Guilty,  and  justified 
hy  Iryiu^  htm  by  a  court-martial.  There  was 
a  verdict  (br  the  plainlitT,  with  JOOl.  damaf^cs. 
A  will  of  error  was  brnughl,  and  Ihe  judgment 
affirmed.  No  diilinclion  cnn  be  made  between 
Ihe  gnternnr  of  Gibraltnr  and  Ibe  gorernor  of 
Minorca ;  except  only,  Ibal  the  one  tried  Con- 
ner by  a  court  mnrUal,  and  punished  him  by 
military  law;  while  tbe  other,  without  any 
trial,  banished  Mr.  Fsbrigas,  contrary  to  all 
ideas  of  justice  and  of  law. 

I  masl  now  bej;  leave  lo  advert  lo  t)ie  bill  of 
exceptions;  in  which  ilisalledgnt,  thai  •■  Mi- 
norca is  divided  iuto  four  districts,  elclusive  vf 
Ibe  arraval,  which  Ibe  wiineisei  always  under- 
stood lo  he  diBlincI  from  Ibe  others,  and  under 
the  immediate  order  of  ihe  goveruor." 

I  am  well  aware,  lliat  I  am  not  al  liberty  lo 
go  out  uf  the  record  ;  if  I  waa,  the  lact  war- 
rants me  iu  saying,  that  tbeeiiJciiceis  moil 

tt  is  iinlorioag  that  Minorca  is  divided  into 
four  terminoxouiyi  Cientadella,  Alayur,  Msr- 
cadel,  and  Malum,  which  latter  inrluiles  tbear< 
raval  of  Ht.  Phillip's.  Tbii  is  known  tu  every 
man  who  has  been  at  Minorca,  and  to  every 
wan  who  has  read  Armslrung's  history  of  Ihat 
island.  Thai  tbe  guveronr  has  a  legislailve 
HUtbority  within  tbe  arraval,  is  ton  absurd  lo 
dwell  ou.     By  what  law,  by  what  (truniion. 


2I9J 


14  GEORGE  IIL 


Actionjlr  False  Impruonment'^ 


rs2o 


doet  he  elaina  that  power?  When  process  is 
ezecuteil  withio  St.  PbillipX  or  its  enrirons, 
Ibe  cifil  magistrate  asoall^  pays  the  gofemor 
the  complimeot  of  acquainting  him  with  it ; 
but  the  same  compliment  is  paid  to  the  com- 
manUio^  officer  at  Cieutadella,  where  an  ex- 
clusive jurisdictioa  is  not  efen  pretended.  In 
fact,  it  is  a  matter  of  ciFility  merely,  but  nef er 
was  a  claim  of  right. 

Lord  chief  justice  de  Grey  in  the  solemn 
opinion  which  he  gave  upon  the  motion  for  a 
new  trial,  has  been  explicit  on  these  two  heads. 
**  One  of  the  witnesses  in  the  cause  (said  his 
lordship)  represented  to  the  jury,  that  in  some 
particular  rases,  especially  in  cnminai  matters, 
the  gofernor  reudent  upon  the  island  does  exei^ 
cise  a  legislatire  power.  It  was  gross  igno- 
rance in  that  person  to  imagioe  sudi  a  thing : 
I  may  say,  it  was  impossible,  that  a  man  who 
lired  upon  the  island,  in  the  station  he  had 
done,  should  not  know  better,  than  to  think 
that  the  gOFemor  had  a  cifil  and  criminal 
power  in  him.  The  gOTernor  is  the  king's  ser- 
vant ;  his  commission  is  from  him,  and  he  is 
to  execute  the  power  he  is  invested  with  under 
that  commission,  which  is  to  execute  the  laws 
of  Minorca,  under  such  regulations  as  the  king 
•hall  make  in  council.  It  was  a  vain  imagina- 
tion in  the  witnesses  to  say,  that  there  were 
i&ve  terminos  in  the  island  of  Minorca.  I  have 
at  various  times  seen  a  multitude  of  authentic 
documents  and  papers  relative  to  that  island  ; 
and  I  do  not  believe,  that,  in  any  one  of  them, 
the  idea  of  the  arraval  of  6t.  Phillip's  being  a 
distinct  jurisdiction  was  ever  started.  Mabon 
is  one  of  the  four  terminos,  and  St.  Phillip's, 
and  all  the  district  about  it,  is  comprehended 
within  that  termino  ;  but  to  suppose,  that  there 
is  a  distinct  jurisdiction,  separate  from  the 
government  of  the  island,  is  ridiculous  and 
absurd." 

These  were  the  words  of  lord  chief  justice 
de  Grey  ;  to  which,  1  am  confident,  this  Court 
will  pay  a  proper  attention. 

The  bill  of  exceptions  then  states,  that  gene- 
ral Mostyn  was  appointed  governor  bv  the 
king's  commission,  which  gives  him  all  the 
powers  belonging  to  the  said  office.  I  wish  to' 
ask  Mr.  Buller,  whether  to  persecute  the  inno- 
cent, and  to  banish  those  subjects  committed  to 
bis  care,  is  a  power  incident  to  or  springing  out 
of  the  office  of  governor  ?  If  it  is  not,  the  go- 
vernor cannot  justify  himself  under  his  com- 
mission. 

It  is  then  stated,  that  the  king  ordered  *<  all 
his  loving  subjects  in  the  said  island  to  obey 
bim,  the  said  John  MosUn ;"  but  nothing  in 
particular  is  mentioned  ofthe  arraval.  Had  it 
beeriji  peculiar  district,  under  the  despotic  will 
of  the  governor,  there  must  have  been  some 
notice  taken  of  it,  either  in  the  commission,  or 
in  his  majesty's  orders.  The  governor  then 
confesses  m  his  bill  of  exceptions,  *<  that  he 
banished  Mr.  Fabrigas  without  any  reasonable 
or  probable  cause,  or  any  other  matter  alledffed 
in  bis  plea,  or  an^  act  tending  thereto."  JNot- 
wiihatiuMiiDg  which  admiiiioD)  in  the  very  next 


sentence,  he  inbists  that  the  plaintiff  ought  to 
be  barred  his  said  action,  although  it  is  stated 
in  the  bill  of  exceptions,  that  *'  the  Minorquios 
plead  sometimes  toe  English  laws." 

Were  the  bill  of  exceptions  less  absurd  than 
it  is,  yet  I  should  contend,  that  the  governor, 
by  plc»ading  in  chief,  and  submitting  bis  cause 
to  the  decision  of  an  English  jury,  has  pre- 
cluded this  Court  from  eoc|uinng  into  the  ori- 
ginal jurisdiction.  Were  it  possible  that  this 
ground  should  fail  me,  when  supported  by  so 
many  great  authorities,  yet  I  should  be  very 
easy  about  the  event;  for,  as  an  action  of  tres- 
pass can  be  brought  in  England  for  injnriec 
abroad,  and  as  every  subject  can  bring  that  ac- 
tion, and  as  governor  Mostyn  (Ijeing  a  subject) 
must  answer  to  it,  I  have  no  doubt  but  tba 
judgment  will  be  affirmed.  Should  it  be  re- 
versed, I  fear  the  public,  with  too  much  troth, 
will  apply  the  lines  of  the  Roman  satirist  oa 
the  drunken  Marius  to  the  present  occasion  ; 
and  they  will  say  of  governor  Mostyn,  as  was 
formerly  said  of  bim. 

Hie  est  damnatns  inani  judicio ; 

and  to  the  Minorqnins,  if  Mr.  Fabrigas  should 
be  deprived  of  that  satisfaction  in  damages 
which  the  jury  gave  him. 

At  tu  victrix  provincia  ploras. 

Mr.  Buller,  1  beg  leave  to  trouble  tha 
Court  with  a  few  words  by  way  of  reply: 
and  though  Mr.  Peckham  has  thought  nt  to 
declaim  so  much  upon  the  particular  facts  of 
this  cause,  yet  I  was  confident  at  first,  and  do 
not  now  find  I  was  deceived  in  thinking,  I 
should  not  be  contradicted  in  what  I  said  about 
the  propriety  of  governor  Mostyn 's  conduct ; 
that  he  bad  taken  every  precaution^bat  a  maa 
in  his  situation  could  do,  had  consulted  many 
persons  there,  civil  and  military,  and  that  they 
were  alt  unanimous  in  advising  the  governor  to 
do  what  was  done. 

The  first  objection  made  by  Mr.  Peckham 
has  been,  that  Mr.  Mostyn  should  be  precluded 
from  conteiiiliog  that  this  Court  hath  not  a  jo- 
risdiction,  because  he  has  submitted  to  the  ju- 
risdiction of  the  Court  in  so  many  instances 
during  the  whole  of  these  proceedings.  He 
has  stated  the  whole  proceedings  during  the 
stages  of  this  cause,  by  which  he  supposes  Mr. 
Mostyn  hath  done  such  acts  as  shall  be  <Mm- 
strned  into  a  submission  to  the  jurisdiction  of 
the  Court,  and  is  therefore  now  precluded  from 
entering  into  the  question.  Further,  Mr. 
Peckham  has  insisted  upon  it,  that  at  the  trial 
we  did  wrong  in  making  a  defence ;  because, 
if  we  meant  to  ^  into  the  question,  whether 
the  Court  Itas  junsdiction  or  not,  we  should  have 
then  insisted  upon  a  non-suit,  and  not  gone 
into  the  merits  ofthe  cause.  I  do  not  appre- 
hend any  of  the  cases  he  has  cited  will  come 
up  to  the  present :  and  as  to  the  different  pe- 
riods of  the  cause,  where  he  supposes  we  have 
submitted  to  the  jurisdiction  of  the  Court,  if 
this  Court  hath  no  jurisdiction  at  all,  1  do  not 
know  how  it  can  then  be  mmI  we  have  lubiiut- 


»1] 


Fabrigas  v*  Mottyn* 


lei  to  it    Siying,  that  at  the  trial  we  should 

kove  insisted  upon  a  non-suit,  is  sayinff  we 

should  have  insisted  upon  what  we  could  not 

demand  ;   for  it  is  at  all  times  at  the  option  of 

the  plaiiilifl',  whether  he  will  submit  to  a  non- 

IMI  or  mit.     1 1' the  defendant  can  avail  himself 

tf  the  objection  at  all,  it  must  be  by  entitling 

liflBBrlf  by  that  means  to  a  ferdict ;  for  it  is  in 

As  power  of  the  plaintiff  to  get  up  and  say,  I 

till  not  be  non- suited.    It  was  impossible  for 

Bf  to  insist  upon  the  objection  in  any  at  her 

wsy  than  it  is  now  done :   the  objection  arises 

•at  of  the  facts  of  the  case,  and  what  was 

BroTcd  at  the  trial.     It  was  there  proved,  that 

Mr.  Moety n  was  the  governor ;    that  what  he 

M   was    in  that  character;   and    therefore, 

■ys  he,  these  facts  being  proved,  1  insist  I 

•«  not  answerable  in  a  court  of  justice  in 

£oglaod,  for  what  1  have  done  in  (hisch^trac- 

tff :   therefore  the  objection  would  have  been 

■Bproper,  if  it  had  come  at  any  other  time ; 

it  could  only  come  when  these  facts  appeared 

is  evidence  upon   which  this  objection  was 

ftooded.     As  to  the  many  cases  that  have  been 

died,  I  bdieve  I  may  safely  give  this  general 

isswer  to  them  all :   they  are  cases  where  an 

•dioD  has  been  brought  in  a  court  in  England, 

fir  a  transaction  arising  in  England,  but,  on 

aeeoont  of  a  charter  or  statute,  the  jurisdiction 

if  the  soperior  court  has  been  excluded.  Where 

thit  ifl  so,  and  this  Court  has  a  general  super- 

islcDdent  jorisdictioD,  but  it  is  taken  away  by  a 

pirtiailar  law,  in  such  case  it  is  necessary  to 

Ijhad  to  the  jurisdiction:   hot  when  the  ques- 

liM  ariaes  upon  a  transaction  happening  in 

facign  parts,  and  where  the  courts  of  England 

aMMH  liave  any  controul  whatsoever,  suppose, 

iiinstaofse,  in  France,  where  the  king  or  par- 

fiiBeot  of  England  can  make  no  laws  to  bind 

4e  inhabitants,  it  is  just  the  same  as  a  court 

if  inferior  record  in  England,  where  it  holds 

.  plea  of  a  thing  done  out  of  their  jurisdiction. 

■•that  case,  if  it  appears  upon  the  proceedings 

Uttt  the  cause  of  action  arose  out  of  the  juris- 

MoDo,  the  whole  proceedings  are  void ;  thpy 

ire  coram  non  judice  ;    aud  an  action  will  lie 

•f^aiast  the  party,  the  officers  and  the  judges, 

Air  what  is  done  under  them. 

In  this  case,  as  I  submit  to  your  lordship, 
the  question  is  the  same  ;  because  it  is  not  on  a 
Iraasaction  happening  within  the  limits,  or 
vithin  the  country  where  this  Court  resides  or 
bs  a  jurisdiction,  but  on  a  transaction  arising 
is  foreign  dominions.  1  beg  leave  to  mention 
<•«,  that  if  these  cases  were  so  very  general  as 
Mr.  Peckham  wishes  to  have  them  understood, 
it  if  not  possible  that  the  case  in  Latch,  or  the 
case  iu  L*utwyche,  e^er  could  have  existed ; 
Weaufte,  if  it  wa>«  to  hold  as  a  general  rule, 
iktt  where  the  cause  of  action  arises  out  of  the 
kise(k»in  you  must  plend  to  the  jurisdiction,  it 
v«Mi(d  have  l>een  a  sufficient  answer  in  those 
tmts  to  say,  it  was  not  so  pleaded.  In  tlie  case 
it  Lotwyche,  there  wa.s  a  plea  in  bar,  and  de- 
Siorrer  to  that  plf»a  ;  but  it  ap|>earing,  that  the 
Cum  Iff  action  did  not  arise  in  this  kingdom, 
^  la  foreign  paru,  the  Court  agreed;  that  the 


A.  D.  177S.  t«S 

supposition  and  quaint  legal  fiction,  which 
otherwise  would  avail,  that  it  was  in  London  or 
England,  was  absurd,  and  the  plaintiff  could 
not  support  his  action.  It  was  tlte  same  in  tha 
case  hi  Latch  ;  for  that  was  not  on  a  plea  to 
the  jurisdiction,  but  the  objection  arose  long 
after,  and  in  a  subsequent  period  of  the  cause : 
the  judges  there  agreed,  that  if  it  appeared  on 
the  record,  that  the  case  was  plainly  and  evi* 
dentlv  out  of  their  jurisdiction,  they  were  bound 
to  take  notice  of  it. 

Mr.  Peckham  has  divided  his  argument  inta 
three  heads:   first,  whether  a  transitory  actios 
is  capable  of  being  brought  in  England,  if  tha 
cause  of  that  action  arise  beyond  the  seas :  8e« 
condly,  whether  the   plaintiff  is  capable  of 
bringing  such  action :    and,  in  the  third  place, 
whether  the  defendant  is  a  proper  object  of  it. 
On  the  first  ef  these  questions  it  has  been  in- 
sisted, that  an  action  of  false  imprisonment  is  a 
transitory  action ;  and  some  cases  dted,  whera 
transitory  actions,  arising  abroad,  are  holden  to 
be  maintainable  here.    An  action  of  false  im- 
prisonment certainly  is  a  transitory  action :  but, 
my  lord,  the  cases  dted  from  IStb  Co.  and  Co. 
Lit.  were  not  cases  of  aation  for  false  imprison- 
ment, but  debt  upon  bond.    These  cases  wera 
where  the  law,  in  the  different  countries,  was 
the  same ;  and  they  therefore  come  within  tha 
distinction  laid  down  in  the  case  before  lord 
Camden.    For,  where  the  law  of  the  different 
countries  is  the  same,  this  Court  may  hold 
plea;  it  may  do  as  much  justice  as  the  foreign 
courts,  and  can  he  involved  in  no  difficulty  with 
respect  to  the  rules  by  which  they  are  to  de- 
cide.   But  in  the  case  of  transactions  arising  in 
foreign  dominions,  where  the  law  of  the  foreign 
country  is  different  from  the  law  of  this  king- 
dom, this  Court  has  no  way  of  informing  them- 
selves what  the  foreign  law  is,  nor  can  they 
know  what  rules  to  decide  by ;  and  therefore 
every  inconvenience  arises  against  their  enter- 
taining such  a  suit.    Mr.  P^ham  tlien  cited 
the  case  of  Parker  against  lord  Clive,  in  this 
court,  and  observed,  that  there  never  was  any 
objection  taken  there,  that  the  action  would  not 
lie.    That  case  is  different  from  the  present. 
That  was  a  case^between  English  subjects,  and 
a  case  that  was ^ to  be  determined,  not  by  the 
law  of  the  East  Indies,  (for  that  was  not  set  up 
as  a  defence,  or  at  all  intermixed  with  the  case) 
but  by  the  law  of  England  ;  and  therefore  is 
still  within  the  distinction  1  have  laid  down 
and  endeavoured  to  support.    Then  the  second 
question  Mr.  Peckham  has  made  is,  whether 
the  plaintiff  can  maintain  this  action?   The 
plaintiff,  he  says,  is  not  an  alien,  but  a  natural- 
born  subject,  and  as  such  he  owes  allegiance, 
and  is  entitled  to  protection  ;  and  that  the  king 
of  England  can  protect  only  by  the  laws  of 
England,  and  therefore  this  man  has  a  right  to 
bring  his  action  here.    The  proposition  will  it- 
self shew  how  enormous  it  would  be,  if  it  were 
to  hold  in  this  case.     How  is  the  king  to  rule 
by  the  laws  of  England  ?    Is  it  meant  that  this 
case  is  to  be  determined  by  the  laws  of  Eng- 
land ?  If  so,  that  would  be  injustice  in  the  most 


SS3] 


1*  GEORGE  m. 


Aclionjbr  False  Impriiovvifut — 


fav  ilie 


I 


I 


ghring  1ig:ht;  hecauoe  it  wiulJ  becondnnitiiiK 
ibe  det'enihiDl  by  one  lair,  viXiva  lie  wm  bound 
to  regulate  lib  cotiiluci  by  a  different.  But  il 
true  that  the  kin|r  ol  Engluiil  can  prnl<ct 
~  law*  of  England  only  ;  for,  in  other 
.  a  Iranxsclioo  rouflt  be  tried  by  the  laws 
of  that  place  where  it  arises ;  and  ibe  king  can, 
Id  Dllier  (ilaces,  goiern  by  other  laws  tlwn 
those  of  EDiclaod:  to  J  I  contend,  tliia  quesllun 
mutt  be  deleriiiined  by  sucli  laws,  and  uot  by 
the  laws  of  this  country.  Mr,  Peckharo  hm 
then  insisted,  tbnl  this  is  a  case  between  siibjecl 
mod  subject.  If  lie  ineanii  il  Is  between  subject 
and  sntyect.  ipealtin]^  ol'ihe  kiii|;  of  England. 
it  Is  true;  but  FabriigM  Is  nut  a  aubjeci  of  Ibia 
realm,  nor  subject  to  be  gorerned  by  the  laws 
of  this  conn  try,  and  therefure  shall  not  avail 
himielf  of  the  lawi  of  Ibis  country.  The  caae 
ID  Salkeld,  401,  was  then  cited,  w^ere  IheCourt 
of  Chancery  (iroceedpfl  against  a  lnrel)j;oer ; 
and  the  reaaon  there  giico  lor  so  doine  is,  be- 
cause that  Court  acts  in  penonaia.  Bui,  my 
lord,  that  case  does  not  appear  to  be  at  all 
blended  with  foreign  law ;  nor  ia  any  thing 
ibere  atatrd,  which  called  on  the  Court  (o  de- 
termine that  case  by  any  other  law  than  the 
known  laws  of  thi^  country,  and  the  rules  of 
their  own  court.  The  case  in  the  4tb  losli- 
lule  was  then  eodearoured  In  be  distinguished 
from  ihe  present,  by  insisling,  ihal  the  subject- 
matler  of  Ibal  case  was  loeaf:  hut  Ihai  answer 
cannot  hold.  If  it  had  been  an  action  In  a 
court  of  law,  the  answer  would  have  been  a 
good  one  1  because  an  action  af  dower  Is  local, 
and  can  only  be  tried  In  the  county  where  the 
land  lies;  but  that  was  a  suit  In  Chancery, 
and  not  an  action  ;  and,  as  ia  saiil  In  the  case 
cited  from  Salbeld,  the  Court  of  Cliincery 
don't  proceed  against  the  thing,  but  against  the 
IKWin. 

Then  the  last  inealioa  that  has  been  innde  is, 
whether  the  deleodant  in  (his  cast  Is  the  proper 
■ubjed of  au  action?  Aly  loni,  Sir.  Frcldiam 
has  observed,  I  said  the  governor  wns  absolute ; 
but  that  he  iusists  is  impossible,  because  there 
is  no  person  who  could  delegate  such  an  autho- 
.  rily  to  him ;  ibat  If  he  derited  such  authority 
from  any  one,  It  must  be  from  Ihe  king  ;  but  the 
king,  out  bring  absolute  himself,  could  not  grant 
warn  BUlhorily  to  Mr.  Slustyn.  If  it  be  meant 
«nty,  titat  Ibe  king  is  not  obsolnte  in  this  coun- 
try, 1  mosl  readily  accede  to  the  proposition  ; 
but  what  the  cniislitutiou  of  this  country  is, 
oaa  be  nv  arguiuent  to  pro«e  what  is  the  state 
«r  consiitulion  of  Minorca.  That  Minorca  la 
«f  A  different  caostitution,  and  ia  governed  by 
different  laws  from  what  prevail  iu  this  coun- 
try, is  staled  In  the  record  ;  which  record  is 
deciaive  upon  tbat  point,  fur  the  Court  cannot 
deiiart  from  it.  It  ut  there  iilaied,  that  the  arra- 
*al  of  8i.  Phillip's  Is  au<<ject  to  Ihe  imiaediate 
order  of  llie  governor,  and  to  his  order  and  di- 
ftclioa  only ;  for  on  judge,  either  criminal  or 
oiril,  can  Interfere,  or  has  auy  jurisdicti'iD 
there,  unless  under  bi»  express  leave;  there- 
fore the  argument,  as  tn  Ihe  authority  or  power 
«r  lite  king  here,  is  luially  foteigo  to  the  silua- 


P 


lion  of  the  gnvernor  of  Mil 
or  jurisdiclinn  he  has  there. 
it  does  not  appear  in  the  record,  Ihat  the « 
fendant  did  act  as  Judge.  This  also  must 
decided  by  the  record  ;  and  it  Is  Ihiire  slab 
that  ibe  defendant  was  governor,  snd  so  bei 
gnvernor  he  caiiged  the  plaintiff  to  be  taki 
Imprisoned,  &c.  The  case  of  Dulton 
Howell  has  been  much  observed  upnn.  and  t 
printed  reasons  given  iu  thai  esse  parliculai 
staled  ;  but  I  do  not  perceive  the  case  bl 
bet-n  disling  Ills  bed  from  the  present.  Some 
the  reasons  alledged  for  the  defendant  the 
are  equally  strong  In  favour  of  the  prei«nl  ( 
(endanl.  It  Is  said,  there  never  was  lucb 
action  maintained  before;  and  If  a  goven 
beyond  sea  be  charged  here,  he  cannot  delii 
himself,  becniise  all  the  records  and  evidec 
are  there.  Mr.  Peckbam  has  not  been  able 
produce  one  rase,  in  which  such  an  nclion 
lliis  has  been  maintained  before.  Itul  lb 
another  ilistinclion  he  endeavaureil  to  a* 
himself  of  is,  Ihat,  in  the  case  of  Uiilton  s 
llowel),  ihe  action  was  fur  un  act  done  In  con 
cil,  and  therefore  varieil  from  this  case,  I 
cause  here  there  was  nocouncil  al  all,  I  ca 
not  see  hnw  that  difference  will  at  all  avail  H 
Peckham's  client.  In  the  first  place,  in  Oi 
hadoea,  there  was  a  conned,  and  ibe  goven 
had  no  power  without  the  cnuncil ;  but  is  tl 
Ihe  case  heref  In  Minorca,  there  Is  uo  coun 
at  all;  and  therefore,  in  this  case,  the  g 
vemor  stands  in  Ibe  same  siiualion  (a  I 
governor  and  council  of  Barhadoes.  As  lal 
neces^ly  of  pleading  In  abatement  to  the  jut 
diction,  it  is  very  observable,  thai  in  the  CIM 
Outton  V.  Howell,  the  cuuOKel  who  argued 
that  cue  do  not  venture  lo  rely  upnn  tMl  C 
Jection.  But  they  insist  further,  that  ibeJM 
diction  cannot  be  examined  in  ibe  Bxcb«|l 
chamber,  because  both  the  statute  and  wnl 
error  expressly  provide  agninsi  II:  and  lbe_ 
fore,  say  they,  it  is  questionable,  whriher 
can  be  insisted  upon  In  the  Ilniue  of  *  ' 
and  it  is  admitted  by  Ihera,  that  a  quesli 
might  have  been  made  on  the  trial  of  an  iisi 
if  one  had  been  joined.  However,  that  qui 
tlon  was  gone  Into  in  the  Huufc  ol  Lords,  a 
the  6nal  decision  of  the  cause  appears  fr 
the  book  ;  namely,  that  the  jnilgiueni  ii  ~ 
case  was  for  tbe  ilef'endani,  aud  that  the 
could  not  be  maintained.  Then  Ihe  words 
[I  cbierjukticu  de  Grey,  in  this  present  < 
>a  a  iiiolion  for  a  new  iriul,  have  been 
relied  upon  i  and  his  lordship  la  made  lo 
Ihat  if  the  governnr  had  srcurerl  the  pr 

Clainliff,  merelj  for  tbe  sake  of  a  trial.  It  woi 
9  a  different  affair.  In  Ibis  case,  1  apprehi 
uld  be  quite  sufiicieiit  (or  me,  il  thi 
vcrnur  had  a  jiower  of  comotii 
he  bad,  that  Is  suSicienl  lo  preveol  thi 
I'tiidant's  being  a  IreapHSser  by  such 
taeai :  and  the  reason ablenei.8  of  the  time  fat 
hich  be  was  ciiiumilK^,  would  be  a  very  dif- 
rent  qiieslion ;  for,  if  Ihe  governor  had  a 
,  awer  of  cummiiling,  he  has  pursued  that 
power,  and  tbca  tbi«  ■ciion  cannot  be  uiaii- 


Fahrigo)  v.  Moslyn. 

Tbe  Heart  cate  that  b*H  been  ciied, 
in  ad  SBlkeli],  which  w 
agUMM  a  gotemur  I'nr  wliat  he  did 
Meri  bul  thai  is  kimjily  a  motioD  fur 
Imt.     Tbe  merits  of  the 
|wly  »f  ibe  aciioii,  wero  not  bttbre  tbe 
Uk  or  at  alt  enler«(l  into  ; 
■  manle  la   tbe  jurisdiciian  nf  the  Cuurl; 
'here  a  ibiog  is  DOt  nbjecled  to,  the  case 
i-ner  be  na  aulUortiy  on  ibe  |>oint:  there 
'  gae  >}'Ilab!e  isaid  Hbuiit  it ;  and  iherel'ore 
i.-ise  cautiM  kave  Ibe  leut  weigiit  wbatto- 
ici peeling  this  qjestion.  Then  Mr.  Peck- 
-   I  tbe  statute  uf  the  Vi\h  of  William 
bat  ibai  »as  admitled  by  him  to  ex- 
In  (n-imiDal  prosecutiunsatlbeking's 

jtmS  ttkerefore  can  hate  noihiog  to  do  ulth 

4r  fKtot  qaestioD.  The  case  of  Conoer 
4piM  Sabtite  ia  as  dilTereot  frnni  this  cuse,  as 
MNC  ease  caa  be  frura  another.  There  the 
Mace  was  uut  upon  the  ground,  that  the 
' -  -ial.    The 


A.  D.  ms. 


[236 


ootolherwise:  theystated  a  limited 

yij^ctioa.   and  it  appeared   (be  ptainlilf  was 

Wlbe  object  of  that  jurisdiction.     Then  it  is 

■y,[haL  Minorca  ia  not  a  niihiary  camp,  hut 

MikcT«  are  judges  huth  criminal  and  civil. 

br  f^ia   I   must  hue  recourse  to  the  re- 

adtatH',   for   there  it  is  Etsied,  that  within 

fctfiaral   of  8L  Philh|i'B,  where  tlii«  Iraus- 

MH  Bcctirred,   there  is  no  jnilge  either  cri- 

■mI  ar  civil ;   there  is  no  power  but  that  of 

k  ptenwr.      Mr.  Peckhtun   observed,  that 

*■  atfrd  in  the  record,  that  the  iubabitants 

aaants     ctaim    jirotection    from    the    law 

4b(tan-l,  as  well  as  tbe  law  of  S|iBin.     It 

•  a  ftalei);     bul    what    is    said    further.' 

titU  tbey  erer  have  it  allowed  In  them, 

*%  Uii?y  are  governed    by  it;    but  it  is 

Vdj  stated,  that  they  are  in  genernl  go- 

MJby  llie  law  of  Spain  ;  therefore  tbe  re- 

■Ifcei  oat  [irute,  ibat  Ibe  people  ii>  Minorca 

v^nnoedby  the  same  laws  as  the  people 

'-.  bM  it  does  p  rote,  that  they  are  governed 

•  t%  ■rliich  are  tiiUlly  diflereol,  and  that 

.  Ibe  nrraval  uf  St.   Phillip'*,  the  will  of 

rrrmtat  is  the  law.     Hr.  Feckbam  then 

-kt  ib«  veiaciry  of  the  record  vrilh  respect 

-!  ttStrtat  disiricM  which  there  are  within 

jalaaJ  ;  ami  baa  insisted,  that  though  in  the 

-  :ti«a  of  process,  Sta.  the  law-oSicers  may 

'  ill  tbe  ^tcmor,  or  inform  him  witat  they 

.-Has  ta  do,  yet  that  ihey  are  nol  bound  by 

10  du  Ml,     My  lord,  the  record  must,  in 

-K  ce^wcu,  aNo  decide  for  us.     It  is  there 

xifd  wbal  the  districts  are  ;  that  Ihe  arraval 

<*  i*.  Pbilhii'a  is  distinct  from  the  others ;  and 


■  be  executed  there,  without  the 
rnraar'a  particular  leave.  Mr.  Peckham 
,  a^  wtwre  ia  tbe  authority  that  ennhli^s  a 
nnw  to  banish  an  innocent  man?  In  ihe 
a  |he«,  •■  to  bis  beioK  an  innocent  man,  it 
t«  oawprtent  to  this  Court  In  ennuire  whe~ 
«■  kc  n>  innoceDi  or  ool,  or  whether  the 
■vmnr  was  ttrictly  jnsiihable  or  uot ;  bul  it 
•Abrnt  10  prgTc,  that  the  gOTeruoi  bud  i 


authority  to  imprison.  That  authority  appears 
upon  Ihe  lace  of  the  record ;  for  it  is  Ibera 
staled  iliBt  he  was  governor,  and  had  every 
power,  civil  aud  military,  and  ihat  all  he  did 
wav  in  the  character  of  a  governiir.  I'liesa 
lads  lieioir  proved,  I  snhtnii  are  a  sutficienl  bar 
to  this  action,  and  ihe  Court  rannot  go  into  tha 
((ueHtiou,  whether  the  plaintiff  was  iimuceni  ur 
guilty.  The  last  argument  that  has  been  rrlieil 
ujion  by  iUr.  Peckham  ia,  some  other  esprev- 
siuns  of  lord  chief  justice  de  Grey,  in  iha 
course  of  this  cause;  in  which  his  lordship 
said,  that  the  witnesses  must  have  been  mia* 
taken  in  the  account  Ihey  ga«e  of  the  cimsti- 
lulion  and  law  of  the  island.     Here  it  is  im- 

Cossible  tor  ilie  Court  to  go  out  of  ihe  record  ; 
ut  these  ohservationa  of  lord  chief  jiislice  da 
Gre^  go  certainly  a  great  way  towards  proving 
Ihe  impmpriety  nf  maintaining  «uch  an  aciioa 
here  as  the  present.  If  the  account  [fiven  by 
lord  chief  justice  de  Grey  of  the  islanit  be  true, 
aud  I  make  nu  doubt  il  ia,  Ihe  consequence  ia 
this :  that  even  Ihough  all  the  evidence  was 
obtained  in  this  cause  that  could  be  had  j 
though  persons  were  called  as  wilnesses,  ivho, 
from  their  sitimlinn,  and  the  departments  they 
had  officiated  in,  were  most  likely  to  be  con- 
versant with  the  law  and  conslilulioa  uf  the 
island ;  yet  that  all  the  acuoiiols  that  have  been 
given  are  imperfect,  erroneous,  and  unworthy 
of  credit.  That  is  tbe  slmngesl  evidence  of 
Ibe  impropriely  of  malnlatDing  such  an  action 
as  Ihis  in  England.  For  if,  as  lord  chief  jui- 
tice  de  Grey  says,  the  evideuce  that  has  been 
given  of  the  foreign  law  in  this  case  is  not  ta 
be  relied  upon,  bul  is  all  a  niistake;  itmajr 
happen,  and  it  must  naluialty  he  expected,  that 
in  every  case  which  is  brought  here  from  fo- 
reign dominions,  where  the  cause  of  action 
arises  abroad,  all  the  cvideuce  Is  abroad,  and 
the  Courl  can  get  no  other  evidence  of  tlie  law 
of  the  place  than  Ihe  loose  opinions  of  ihoso 
who  have  occasionally  bten  Ihcre;  and  ihe 
courts  here  having  no  established  legal  mode  of  ' 
obtaining  cerliticatea  froia  such  country,  pro- 
perly HuUienticated,  to  say  what  the  law  there 
IS,  ttie  same  mistakes  and  inconveuienue  will 

Therefore,  on  the  whale,  I  trust  the  Court 
will  be  of  opinion,  that  this  action  is  improper, 
and  ought  not  to  be  niainiained  here. 

Lord  Manifteld.  Let  il  stand  for  anolhec 
argument.  Ii  has  been  extremely  well  argued 
on  both  sides. 


On  Friday  tFie  B7th  January,  1775,  it  naa 
very  ably  ii^ued  by  Mr.  Serjeant  Glynn,  on 
the  part  of  Mr.  Fabrtgas,  and  by  Mr.  Serjeant 
U'alker,  on  behalf  of  govennr  Moslyu  :  but  as 
no  new  cases  were  cited,  we  shall  proceed  to 
give  Ihe  Judgment  of  the  Court  uf  Klng's- 
beuch,  which  was  in  substance  as  follows : 

Lord  Mamjleld.     This  was  an  nntion  for  an 
ssanlt  aud  lalse  imniisonmeni  by  the  defen- 
dant upDD  the  plainiilf.    And  part  of  tbe  com* 
Q 


283] 


U  GEORGE  III. 


AtAonJbr  Fahe  Imprisonment^-^ 


[22ft 


ghurinf  light;  becaoie  it  would  becomteMunf 
the  defendant  by  one  law,  when  he  waa  hoond 
to  regulate  his  conduct  by  a  different.  But  it 
is  not  true  that  the  king  of  England  can  protect 
bv  the  lawe  of  Enghmd  only  ;  for,  in  other 
places,  a  transaction  must  be  tried  by  the  laws 
of  that  place  where  it  arises ;  and  the  king  can, 
in  other  places,  gofeni  by  other  laws  than 
those  of  England:  and  I  contend,  this  question 
must  be  determined  by  such  laws,  and  not  by 
the  laws  of  this  country.  Mr.  Peckham  has 
then  insisted,  that  this  is  a  case  between  subject 
and  subject.  If  he  means  it  is  between  subject 
and  sulgect,  speaking  of  the  king  of  England, 
it  is  true;  but  Fabrigas  is  not  a  subiect  of  this 
realm,  nor  subject  to  be  governed  by  the  laws 
of  this  country,  and  therefore  shall  not  avail 
himself  of  the  laws  of  this  country.  The  case 
in  SalkeM,  404,  was  then  cited,  wliere  the  Court 
of  Chancery  proceeded  against  a  foreigner ; 
and  the  reason  there  given  for  so  doing  is,  be- 
cause thtft  Court  acts  in  pertofuan.  But,  my 
lord,  that  case  does  not  appear  to  be  at  all 
blended  with  foreign  law;  nor  is  any  thing 
there  stated,  which  called  on  the  Court  to  de- 
termine that  case  by  any  other  law  than  the 
known  laws  of  this  country,  and  the  rules  of 
their  own  court.  The  case  in  the  4th  Insti- 
tute was  then  endeaToured  to  be  distinguished 
from  the  present,  by  insisting,  that  the  subject- 
matter  of  that  case  was  local:  but  that  answer 
cannot  hold.  If  it  had  been  an  action  in  a 
court  of  law,  the  answer  would  have  been  a 
good  one  ;  because  an  action  of  dower  is  local, 
and  can  only  be  tried  in  the  county  where  the 
land  lies;  out  that  was  a  suit  in  Chancery, 
and  not  an  action  ;  and,  as  is  said  in  the  case 
cited  from  Salkeld,  the  Court  of  Chancery 
don't  proceed  against  the  thing,  but  against  the 
pemn. 

Then  the  last  question  that  has  been  made  is, 
whether  the  defendant  in  this  case  is  the  proper 
subject  of  an  action?  My  lord,  Mr.  Peckham 
has  observed,  I  said  the  governor  was  absolute ; 
but  that  he  insists  is  impossible,  because  there 
is  no  person  who  could  delegate  such  an  autho- 
.rity  to  him ;  that  if  he  derived  such  authority 
from  any  one,  it  must  be  from  the  king  ;  but  the 
king,  not  being  absolute  himself,  could  not  grant 
such  authority  to  Mr.  Miistyn.  If  it  be  meant 
only,  that  the  king  is  not  absolute  in  this  coun- 
try, I  most  readily  accede  to  the  proposition ; 
but  what  the  coustitutioii  of  this  country  is, 
can  be  ncr  argument  to  prove  what  is  the  state 
or  constitution  of  Minorca.  That  Minorca  is 
of  a  different  constitution,  and  is  governed  by 
different  laws  from  what  prevail  in  this  coun- 
try, is  stated  in  the  record  ;  which  record  is 
decisive  upon  that  point,  for  the  Court  cannot 
depart  fh>m  it.  It  is  there  stated,  that  the  arra- 
val  of  St.  Phillip's  is  subject  to  the  immediate 
order  of  the  governor,  and  to  his  order  and  di- 
rection only ;  for  no  judge,  either  criminal  or 
civil,  can  interfere,  or  has  any  jurisdiction 
there,  unless  under  his  express  leave :  there- 
fore the  argument,  as  to  the  authority  or  power 
of  the  king  herep  is  totally  foreign  to  thesitna- 


tioD  of  the  governor  of  Minorca,  or  the  power 
or  jurisdiction  he  has  there.    Then  it  is  said, 
it  does  not  appear  on  the  record,  that  the  de- 
fendant did  act  as  judge.    This  also  must  he 
decided  by  the  record ;  and  it  is  there  stated, 
that  the  defendant  was  governor,  and  so  being 
governor  be  caused  the  plaintiff  to  be  taken, 
imprisoned,  &c.      The  case  of    Dutton    9. 
Howell  has  been  much  observed  upon,  and  the 
printed  reasons  given  in  thst  case  particulariy 
stated ;   but  I  do  not  perceive  the  case  has 
been  distingubhed  from  the  present.    Some  of 
the  reasons  alledged  for  the  defendant  there, 
are  equally  strong  in  favour  of  the  present  de- 
fendant.   It  is  said,  there  never  was  such  an 
action  maintained  before;  and  if  a  governor 
beyond  sea  be  charged  here,  he  cannot  defend 
himself,  because  all  the  records  and  evidence 
are  there.    Mr.  Peckham  has  not  been  able  to 
produce  one  case,  in  which  such  an  action  as 
this  has  been  maintained  before.     But  then 
another  distinction   he  endeavoured  to  avail 
himself  of  is,  that,  in  the  case  of  Duttoo  and 
Howell,  the  action  was  for  an  act  done  in  coun« 
cil,  and  therefore  varied  from  this  case,  be* 
cause  here  there  was  no  council  at  all.     I  can* 
not  see  how  that  difference  will  at  all  avaU  Mr. 
Peckham*s  client    In  the  first  place,  in  Bar- 
hadoes,  there  was  a  council,  and  the.  governor 
had  no  power  without  the  council ;  but  is  that 
the  case  here  ?    In  Minorca,  there  is  no  council 
St  all;  and  therefore,  in  this  case,  the  go- 
vernor sunds  in   the  same  situation   as  tho 
governor  and  council  of  Barbadoes.    As  to  the 
necessity  of  pleading  in  abatement  to  the  juria- 
diction,  it  is  very  observable,  that  in  the  case  of 
Dutton  V.  Howell,  the  counsel  who  argued  ia 
that  case  do  not  venture  to  rely  upon  that  oh* 
jection.     But  they  insist  further,  that  the  juria* 
diction  cannot  be  examined  in  the  Exchequer 
chamber,  because  both  the  statute  and  writ  of 
error  expressly  provide  against  it :  and  there- 
fore, say  they,  it  is  questionable,  whether  it 
can  be  insisted  upon  in  the  House  of  Lords  t 
and  it  is  admitteo  by  them,  that  a  question 
might  have  been  made  on  the  trial  of  an  issue, 
if  one  had  been  joined.    However,  that  ques- 
tion uas  gone  into  in  the  Houi^e  ol  Lords,  and 
the  final  decision  of  the  canse  appeara  from 
the  book ;  namely,  that  the  judgment  in  that 
case  was  for  the  defendsnti  and  that  the  action 
could  not  be  maintained.    Then  the  words  of 
lord  chief  justice  de  Grey,  in  this  present  cauae^ 
upon  a  motion  for  a  new  trial,  have  been  mods 
relied  upon ;  ami  his  lordship  is  made  to  say, 
that  if  the  govern' t  had  secured  the  present 
plaintiff,  merely  for  the  sake  of  a  trial,  it  would 
be  a  different  affair.     In  this  case,  1  apprehend 
it  would  be  quite  sofiicient  for  me,  if  the  go- 
vernor had  a  power  of  committing  at  all ;  for  if 
he  had,  that  is  sufficient  to  prevent  the  dn» 
feudunt's  being  a  trespasser  by  such  commit* 
ment :  and  the  reasonableness  of  the  time  for 
which  he  was  committed,  would  be  a  very  dif> 
ferent  question;   for,  if  the  governor  bad  n 
|iower  of  committing,   he  has   pursued 
power,  and  then  this  actum  caonoi  bo 


10] 


Fabrigas  v.  Motijflk 


A.  D.  1779, 


[82S 


tiioed.    The  next  caie  that  has  been  cited,  is 
htd  BeUamoot's  case  in  2<1  SalkelJ,  which  was 
wm  tctioa  agaiasl  a  governor  for  what  he  did  in 
tkit  cbaractflr :  hot  that  is  ftiniply  a  motion  for 
a  tiial  ftt  bv.    The  merits  of  the  case,  or  the 
fnpriety  of  the  action,  were  not  before  the 
Onit,  or  at  ail  entered  into ;  nor  was  any  oh* 
JKiios  made  to  the  jurisdiction  of  the  Court  4 
mi  where  a  thing  is  not  objected  to,  the  case 
Oi  nmrcr  be  an  authority  on  the  point:  there 
■  let  one  syllable  said  about  it ;  and  therefore 
tkt  case  cannot  have  the  least  weight  whatso- 
raspecting  this  question.  Then  Mr.  Peck- 
cited  the  statute  of  the  12lh  of  William 
tbe  third :  but  that  was  admitted  by  him  to  ex- 
lad  oohr  to  criminal  prosecutions  at  the  king's 
sail,  aod  therefore  can  have  nothing  to  do  with 
the  preaeol  question.     The  case  of  Conner 
^fHHt  Sabine  is  as  different  from  this  case,  as 
aa?  oae  eaae  can  be  from  another.    There  the 
immw  was  pot  upon  the  ground,  that  the 
pbioliflr  was  amenable  to  a  court-martial .    The 
6ci  tamed  oat  otherwise:  they  stated  a  limited 
'   'idiedon,  aod  it  appeared  the  plaintiff  was 
the  object  of  that  jurisdiction.    Then  it  is 
that  Minorca  is  not  a  military  camp,  but 
that  tbere  are  judges  both  criminal  and  civil. 
Acre  agaio  1  must  have  recourse  to  the  re- 
csri  itself;  for  there  it  is  stated,  that  within 
the  airaral  of  St.  Phillip's,  where  this  trans- 
adiaa  occurred,  there  is  no  judge  either  cri- 
■iaal  or  ciril;  there  is  no  power  hot  that  of 
At  governor.     Mr.  Peckham  observed,  that 
it  is  staled  in  the  record,  that  the  inhabitants 
SMMliaies    claim    protection    from    the   law 
if  SogfoDd,  as  well  as  the  law  of  Spain.    It 
ii  as   stated;    but  what    is    said   further? 
Kn  that  tbey  ever  have  it  allowed  to  them, 
vibat  they  are  governed    by  it;   but  it  is 
opreasly  stated,  that  they  are  in  general  go- 
Mned  by  the  law  of  Spam :  therefore  the  re- 
cvri  does  not  prove,  that  the  people  iti  Minorca 
Iff  gorerued  by  the  same  laws  as  the  people 
hoc;  bat  it  does  prove,  that  tbey  are  governed 
fty  kws  which  are  totally  different,  and  that 
viihia  the  arraval  of  St.  Phillip's,  the  will  of 
the  governor  is  the  law.    Mr.  Peckham  then 
ttlMdu  the  reracity  of  the  record  with  respect 
Is  the  different  districts  which  there  are  within 
the  islaod  ;  and  has  insisted,  that  though  in  the 
tieeution  of  process,  &c.  the  law-officers  may 
csasolt  the  governor,  or  inform  him  what  they 
lie  going  to  do,  yet  that  thev  are  not  bound  by 
liv  to  uo  so.     My  lord,  tne  record  must,  in 
tbtae  respects,  also  decide  for  us.    It  is  there 
ostid  what  the  districts  are  ;  that  the  arraval 
of  81.  Phillip's  is  distinct  from  the  others ;  and 
Ihit  00  toagistrates  can  come  there,  nor  can 
I    isj  process  be  executed  there,  without  the 
ftveroor's  particular  leave.      Mr.   Peckham 
ttkk,  where  is  the  authority  that  enabltfs  a 
|sv#mor  to  banish  an  innocent  manf    In  the 
te  pfaice,  as  to  his  being  an  innocent  man,  it 
b  BOt  competent  to  this  Court  to  enquire  whe- 
ther be  was  innocent  or  not,  or  whether  the 
strictly  justifiable  or  not ;  but  it 
to  profCi  that  the  governor  bad  an 
VUU  XX. 


authority  to  imprison.  That  authority  app^rs 
upon  the  face  of  the  record ;  for  it  is  there 
stated  that  he  was  governor,  and  had  every 
power,  civil  and  military,  and  that  alt  he  did 
was  in  the  character  ot  a  governor.  These 
facts  being  proved,  1  submit  at«  a  sufficient  bar 
to  this  action,  and  the  Court  cannot  go  into  the 
question,  whether  the  plaintiff  was  innocent  or 
guilty.  The  last  argument  that  has  been  relied 
upon  by  Mr.  Peckham  is,  some  other  expres- 
sions of  lord  chief  jtistice  de  Grey,  in  the 
course  of  this  cause;  in  which  his  lord<*hip 
said,  that  the  witnesses  must  have  been  mis- 
taken in  the  account  they  gave  of  tlie  consti- 
tution and  law  of  the  island.  Here  it  is  im- 
possible for  the  Court  to  go  out  of  the  record : 
out  these  observations  of  lord  chief  justice  de 
Grey  go  certainly  a  great  way  towards  proving 
the  impropriety  of  maintaining  such  an  action 
here  as  the  present.  If  the  account  i^iven  by 
lord  chief  justice  de  Grey  of  the  island  be  true, 
and  I  make  no  doubt  it  is,  the  consequence  is 
this:  that  even  though  all  the  evidence  waa 
obtained  in  this  cause  that  could  be  bad  | 
though  persons  were  called  as  witnesses,  who^ 
from  their  situation,  and  the  departments  they 
had  officiated  in,  were  most  likely  to  be  con- 
Tenant  with  the  law  and  constitution  of  the 
island ;  yet  that  all  the  acconnts  that  have  beea 
given  are  imperfect,  erroneous,  and  unworthy 
of  credit.  That  is  the  strongest  evidence  of 
the  impropriety  of  maintaining  such  an  actran 
as  this  m  England.  For  if,  as  lord  chief  jus- 
tice de  Grey  says,  the  evidence  that  has  beea 
S'ren  of  the  foreign  law  in  this  case  is  not  to 
I  relied  upon,  but  is  all  a  mistake ;  it  may 
happen,  ana  it  must  naturally  he  expected,  that 
in  every  case  which  is  brought  here  from  fo- 
reign oominions,  where  the  cause  of  action 
arises  abroad,  all  the  evideuce  is  abroad,  and 
the  Court  can  eet  no  other  evidence  of  the  lavr 
of  the  place  than  the  loose  opinions  of  those 
who  have  occasionally  been  there ;  and  the 
courts  here  having  no  estsblished  legal  mode  of 
obtaining  certificates  from  such  country,  pro- 
perly authenticated,  to  say  what  the  law  there 
IS,  the  same  mistakes  and  inconvenience  will 
arise. 

Therefore,  on  the  whole,  I  trust  the  Court 
will  be  of  opinion,  that  this  action  is  improper, 
and  ought  not  to  be  maintained  here. 

Lord  Mansfield.  Let  it  stand  for  another 
argument.  It  has  been  extremely  well  argued 
on  both  sides. 


On  Friday  the  S7th  January,  1775,  it  was 
very  ably  argued  by  Mr.  Serjeant  Gl^^nn,  on 
the  part  of  Mr.  Fabrigas,  and  by  Mr.  Serjeant 
Walker,  on  behalf  of  governor  Most^u  :  but  as 
no  new  cases  were  cited,  we  shall  proceed  to 
give  the  Judgment  of  the  Court  of  King's- 
bench,  which  was  in  substance  as  follows : 

Lord  Mamfield.  This  was  an  action  for  an 
assault  and  lalse  imprisonment  by  the  defen- 
dant upon  the  plaintilf.    And  part  of  the  com* 

Q 


S27J 


14  GEORGE  ni. 


AdUmfir  False  Imprisonment^^ 


[888 


plaint  beingf  for  IwDishinfj^  bim  fnim  the  island 
of  Minorca  to  Cartha^feDa,  in  Spain,  it  was 
Decesnary  for  the  plaintiff  to  take  notice  in  the 
declaration  of  the  real  place  where  the  c^use 
of  coin|ilaint  arose ;  which  he 'has  stated  to  be 
at  Minorca,  with  a  videlicet  in  London,  at  St. 
Mar>-le  Bow.  Had  it  not  been  lor  that  par- 
ticiiJHrity,  he  mi^ht  ha?e  slated  it  to  ha?e  been 
in  the  county  of  Middlesex ;  but  part  of  the 
ctMnplaiiit  luakinfjf  the  locality,  where  the  came 
of  action  arof>e,  necessary  to  l»e  stateil,  being  a 
banish uieut  fn)ui  Minorca  to  Carthaafena,  he 
atates  it  with  this  videlicet.  To  this  declaration 
the  df leudunt  put  in  two  pleas;  fir8t,Mot  Guilty; 
and  then  he  pleads,  that  he  was  Kovemor  of 
Minorca,  bv  letters  patent  from  the  crown,  and 
that  the  defeudant  was  raismjf  sedition  and 
mutiny  ;  in  consequence  of  which  he  did  im- 
prison him  and  send  him  out  of  the  island, 
which  he  alledgfes  he  hud  an  authority  to  do, 
for  that  sedition  and  mutiny  that  he  then  was 
raising.  I'o  this  plea  the  plaintiff  does  not 
demur,  nor  does  he  deny  that  it  would  be  a 
justification,  in  case  it  was  true ;  but  he  denies 
the  truth  of  the  fact,  and  puts  in  issue  whether 
the  fact  of  the  plea  was  true.  The  plea  avers, 
Uiat  the  assault  for  which  the  action  was 
brought  arose  in  the  island  of  Minorca,  out  of 
the  realm  of  England,  and  no  where  else.  To 
this  the  plaintiff  has  made  no  new  assignment, 
ftnd  therefore  by  his  replication  he  admits  the 
locaHty  of  the  cause  of  action.  Thus  then  it 
•tood  upon  the  pleadings.  When  the  trial 
came  on,  the  plaintiff  went  into  the  evidence  of 
his  case,  and  the  defendant  went  likewise  into 
his  evidence.  But,  upon  the  |>art  of  the  de- 
fendant, evidence  different  from  any  fact  al- 
ledged  in  his  plea  of  justification  was  given ; 
and  witnesses  were  called  to  prove  that  the 
district  in  Minorca  called  the  arraval,  %vhere 
the  injury  complained  of  was  done,  was  not 
within  eitnerof  the  four  precincts,  but  that  it  is 
in  the  nature  of  a  peculiar  liberty,  more  imme- 
diately under  the  fiower  of  the  governor,  and 
that  no  judge  of  the  island  can  eiercise  juris- 
diction there  without  an  appointment  from  him. 
That  is  the  substance  of  their  evidence. 

The  judge  lef\  it  to  the  jurv  upon  the  facts 
Af  the  case;  atid  they  found  for  the  plaintiff. 
The  defendant  then  tendered  a  bill  of  excep- 
tions, upon  which  bill  of  exce|)tions  it  comes 
before  us.  And  the  great  difficulty  1  have  had 
upon  both  tliese  arguments  is,  to  be  able  clearly 
to  comprehend  what  question  it  is  that  is  meant 
•eriously  to  be  brought  before  the  Court  for 
their  judgment.  If  I  understand  the  counsel  for 
govarnar  Hoatyn  right,  what  they  say  is  this : 
the  plea  of  Not  Guilty  is  totally  immaterial, 
and  the  pka  of  jnstifiostion  ia  totally  imina- 
Ifffial,  for  it  ap|w«ra  oo  the  plainti&T's  own 
-^_   ,      ^^  ^1^^  matter  arose  in  Minorca; 

rapKcntloa  to  tha  plea  admita  it :  and 
pIm  appMn  that  the  defendant  was  go- 
af Jnam;  and  aa  the  inprisounent 
hylhtfMllMrity  of  the  da- 
«i«kl  la  Inte  Mopptd  aU 
kivt  diiicied 


I  jury  immediately  to  have  found  for  the  defen- 
dant. Why  ?  There  are  three  reasons  given. 
One  of  them  insisted  upon  in  the  first  argument 
(but  abandoned  to-day)  is,  that  the  plaintiff  h 
a  Minorqutn,  born  in  the  island  of  Minorca, 
To  dispose  of  that  objection  at  once,  I  ahali 
only  ssy  that  it  is  wisely  abandoned  to -day. 
A  Minorquin  ;  what  then  ?  Has  not  a  fnlncci 
of  the  king,  born  at  Minorca,  as  good  a  right 
to  apply  to  the  king's'  courts  of  justice,  aa  a 
person  oorn  within  the  aound  of  Bow-bell,  in 
Cheapsiite  ?  If  there  is  no  other  objection  to 
him,  would  that  make  any  ?  To  be  sure  not. 
But  it  is  abandoned,  so  I  shall  lay  it  out  of  the 
case. 

The  other  two  grounds  which  are  enforced 
to-day  are,  if  I  take  them  right — but  1  am 
under  some  difficulties,  bi'cauRe  they  are  such 
propositions  that  you  may  ar^ue  as  well  whe* 
ther  there  is  such  a  court  existing  as  tliia  which 
1  am  now  sitting  in — the  first  is,  that  he  waa 
governor  of  Minorca,  and  therefore  for  no  in- 
jury whatsoever  that  is  done  by  him,  right  or 
wrong,  can  any  evidence  be  beard,  and  that 
no  action  can  lie  against  him ;  the  next  is,  that 
the  injury  was  done  out  of  the  realm :  I  think 
these  are  the  whole  amount  of  the  questiona 
that  have  been  laid  before  the  Court.  Now  aa 
to  the  first,  there  is  nothing  so  clear  as  thai 
in  an  action  of  this  kind,  which  is  for  an  as- 
sault and  false  imprisonment,  the  defen<knty 
if  he  hu  any  justification,  must  plead  it; 
and  there  is  nothing  more  clear  than  that,  if 
the  Court  has  not  a  general  jurisdiction  of  the 
matter,  he  most  plead  to  that  jurisdiction,  and 
he  cannot  take  advantage  of  it  upon  the  ge- 
neral issue :  I  therefore,  upon  that  ground,  at 
once  lay  out  of  the  ca^ie  every  thing  relative  l» 
the  arraval;  fi>r  if  he  acted  as  a  judge,  it  it 
syuonimous  to  a  court  of  record  :  and  thonvh 
it  arises  in  a  foreign  country,  where  the  tech- 
nical distinction  of  a  court  of  record  doea  nal 
exist,  yet  if  he  sat  in  a  court  of  justice,  and 
subject  to  a  superior  review,  it  is  within  the 
reason  of  the  law  of  England,  which  says, 
that  shall  be  a  justification,  and  he  would,  if 
he  had  acted  according  to  the  law  of  the  land* 
be  entitled  to  a  justification  in  the  fact  tliat  it 
complained  of;  but  that  must  be  pleaded.  If 
an  action  is  brought  against  a  person  who  it 
a  judge  of  record,  he  must  lay  it  before  the 
court,  b^  way  of  plea  and  justification,  that  Im 
was  a  judge.  1  don't  lay  a  stress  upon  the 
'  word  reconi,  but  there  is  no  colour  upon  the 
I  evidence  that  he  acted  as  a  jud^e  of  a  court 
'.  of  justice;  therefore  every  thing  stated  re- 
lative to  the  arraval,  inhich  is  stated  in  the  bfll 
of  exceptions,  is  nothing  at  all  to  the  nurpoea. 
The  first  point  that  I  shall  begin  with  is  the 
sacredness  of  the  person  of  the  governor. 
■  Why,  if  that  was  true,  and  if  the  law  waa  aog 
I  he  must  plead  it.  This  is  an  action  of  falac 
imprisonment:  prima  facie,  the  Court  Iih 
junadictiou.  If  he  was  guilty  of  the  fad,  ha 
must  shew  a  special  matter  tiMt  he  did  thia  hj 
a  proper  authority.  What  is  hit  proper  an* 
tlioritj  P  The  lung'a  cwniaittion  to  maka  hia 


m} 


Fabrigat  v.  MoHyn, 


A.  D.  1773. 


[230 


pmxfMr,  Why  then,  he  certaioly  must  plead 
t :  but,  howerer,  I  will  not  rest  the  answer 
BpOB  that.  It  has  been  sinj^led  out,  that  in  a 
eshojr  that  is  beyond  the  seas,  but  part  of  the 
of  the  crown  of  England,  thou((b 
wonid  lie  for  inioriea  committed  by 
peraona,  yet  it  shall  not  lie  against  the 
iMUuor.  Now  I  say,  for  many  reasons,  if  it 
il  not  lie  against  any  other  man,  it  shall  most 
■pfcitiraHy  lie  iqi^inst  the  go?emor.  In  e? ery 

tlo  the  jarisdiction,  you  must  state  a  iuris- 
Mi ;  for  if  there  is  no  other  method  of  trial, 
Aat  alone  will  give  the  king's  courts  jnris- 
ielion.  If  an  action  is  brought  here  for  a 
arising  in  Wales,  yo\k  must  shew  the 
'  m  of  the  court  in  Wales :  and  in 
sicry  case  to  repel  the  jurisdiction  of  the 
king's  ooarts,  you  must  shew  a  better  and  a 
Mre  proper  jurisdiction.*  Now  in  this  case 
IS  other  joriadictionf  is  shewn,  eren  by  way 
€  argument ;  and  it  is  most  certain,  that  if  the 
lag's  courts  cannot  hold  plea  in  such  a  case, 
mn  is  no  other  court  upon  earth  that  can  do 
It:  lor  it  ia^truly  said,  that  a  governor  is  in  the 
Mara  of  a  viceroy,  and,  of  necessity,  part  of 
At  privileges  of  the  king  are  communicated  to 
liAi  durinff  the  time  of  his  government.  No 
crisiiiial  prosecution  lies  against  him,  and  no 
dvil  actioo  will  lie  against  him ;  because,  what 
wsald  the  consequence  be  P  Why,  if  a  civil  ac* 
lisB  lies  against  him,  and  a  judgment  obtained 
fer  daaiages,  he  might  be  taken  up  and  put  in 
man  oo  a  Capias  ;  and  therefore,  locally,  dur- 
agtke  tioie  of  his  government,  the  courts  in 
Aeidaod  cannot  hold  plea  against  him.  But 
b  this  peculiar  case,  it  is  said  to  have  happened 
■  the  arraval.  Why,  it  is  stated  in  the  evi- 
iaee,  that  no  judge  can  sit  there  at  all  with- 
SAhia  leave.  If  he  is  out  of  the  government, 
it ;  he  comes  and  lives  in  England, 
be  has  no  effects  there  to  be  attached: 
ihere  is  no  remedy  whatsoever,  if  it  is 
■it  ID  the  king's  courts.  But  there  is  another 
fcry  atronir  reason  alluded  to  by  Mr.  Serjeant 
CHJyno,  which  would  alone  be  decisive.  This 
ii  a  charge  against  him,  which,  though  a  civil 
\  has  a  mixture  of  criminality  in  it:  it 
lult ;  which  is  criminal  by  the  laws  of 


*  As  to  this,  see  the  Case  of  the  hon.  Robert 
JahiMOii,  6  East,  583.  See  also  the  Case  of 
the  KJnIoehs,  vol.  18,  p.  305. 

f  Speaking  of  lord  Mansfield's  judgment 
ia  tfaia  case,  Mr.  Duller  in  bis  long  disquisi- 
Isrial  note  to  Co.  Lilt.  391  a,  Kays,  **  wherever 
a  personal  injury  is  doue  to  an  English  sub- 
jpsi  abroad,  tbe  remedy  muNt  he  sought  iu  the 
nrisdiction  where  the  cause  uf  action  hapiiens, 
/  il  ia  subject  to  the  king's  jurisdiction  ;  if 
'^  king  has  no  jurisdiction  in  thai  place,  this 
-^aarily  gives  the  king's  courts  a  jurisdic- 
rithia,  which  it  is  brought,  by  the  known 
J  of  laying  the  venue  in  som^  county  of 

aaod.      This  is  explained  by  lord  Mans- 
with   his  usual  clearness  and  ability." 
■r.  Butler  refers  to  Phill^brown  v.  Rvlaod, 
dM.  Lord  Ray m.  1388,  and  8  Mod.  354. 


England,  and  is  an  abuse  of  that  authority 

S'ven  him  by  the  king's  letters  patent  under 
e  great  seal.     Now,  if  every  thing  within  a 
dominion  is  triable  by  the  courts  within  that 
dominion,  yet  the  consequence  of  the  king's 
letters  patent,  which  gives  the  power,  must  be 
tried  here  ;  for  nothing  concerning  the  seignio- 
ry can  be  tried  in  the  place  where  it  is.    In  tha 
proprietary  governments   in    America,   they 
cannot  try  any  question  concerning  the  seignio- 
ry, in  their  own  courts ;  and  therefore,  though 
questions  concerning  lands  in  the  isle  of  Mwx 
are  triable  in  the  courts  of  the  isle  of  Man,  yet 
wherever  there  is  a  question  concerning  the 
seigniorv,  it  must  be  tried  in  some  courts  in 
EngUnd.    It  was  so  held  by  the  chief  justice 
anamanv  of  the  judges  in  the  reign  of  queea 
Elizabeth,  upon  a  question  arising  concerning 
the  seigniory  of  the  isle  of  Man.    Or  when* 
ever  there  is  a  question  between  two  provincea 
iu  America,  it  must  be  tried  in  England  by 
analo|fy  to  what  was  done  with  respect  to  the 
seigniories  in  Wales  bein^  tried  m  English 
counties  ;  so  that  emphatically  the  governor 
must  be  tried  in  England,  to  see  whether  he 
has  exercised  legally  and  properiy  that  autho* 
rity  given  him  by  the  king's  lettm  patent,  or 
whether  he  has  abused  that  authority,  contrary 
to  the  law  of  EngUnd,  which  governs  the 
letters  patent  by  which  he  is  appointed,  iv,  It 
does  not  follow  from  this,  that,  according  to 
tbe  nature  of  the  case,  let  the  cause  of  action 
arise  where  it  may,  that  a  man  is  not  entitled 
to  give  every  justification  that  ought  to  be  « 
defence  to  4iim.     If  by  the  authority  of  that 
capacity  in  which  he  stood  he  has  done  right, 
he  is  to  lay  that  before  the  Court  by  a  proper 
plea,  and  tbe  Court  will  exercise  their  judgment 
whether  that  is  not  a  sufficient  justification. 
In    this   case,  if  the  justification    had  been 
proved,  perhaps  the  Court  would  have  been  of 
an  opinion  that  it  was  a  sufficient  answer,  and 
he  might  have  moved  in  arrest  of  judgment 
afterwards,  and  taken  the  opinion  of  the  Court ; 
but  the  Court  must  be  of  opinion  that  it  is  a 
sufficient  answer,  and  that  the  raising  a  mutiny 
in  a  garrison,  though  in  time  of  peace,  was  a 
reason  for  tiiat  summary  proceeding,  in  taking 
him  up  and  sending  him  out  of  the  island.     I 
could  conceive  cases  in  time  of,. war,  in  which 
a  governor  would  be  justified,  though  he  acted 
very  arbitrarily,  in  which  he  could  not  be  jus- 
tified in  time  of  |)eace.    Suppose  in  a  siege,  or 
%%heo  the  French  v^eregoinu:  to  invade  Minorca, 
suppose  that  the  governor  should  think  pmper 
10  send  a  hundred  of  the  inhabitants  out  of  the 
island,  and  that  he  did  this  really  acting  for  the 
liest :  or  suppose,  upon  a  general  suspicitm,  he 
should  take  )»eople  up  as  spies:  ^hy,  upon 
proper  circumstances  laid  before  the  Court  for 
their  judgment  and  opinion,  it  would  be  very 
fit  to  see  whether  he  had  acted  as  the  governor 
of  the  garrison  ou^jht,  according  to  the  law  of 
England  and  the  ju!»tice  of  tbe  case.     But  it  is 
said,  if  there  is  u  law  in  the  garrison,  or  if  he 
acts  as  the  Spanish  governor  might  have  done 
before,  bow  is  that  to  lie  known  here?— Uow  f 


fSl] 


U  GEORGE  III. 


Actionjbr  Fake  Impritonment— 


[89C 


M'hy,  there  are  ways  of  knomnar  foreigfn  laws 
as  well  as  our  own,  but  in  a  diflTerent  manner : 
it  must  be  |iro?ed  as  a  fact,  and  in  that  shape 
the  court  must  assist  the  jury  in  finding  oat 
whnt  the  law  really  is.  Suppose  there  is  a 
Frendi  settlement  (there  is  a  case  in  point  of 
the  sort  I  am  stating)  which  depends  upOn  the 
custom  of  Paris ;  why,  we  must  receive  wit- 
nesses with  regard  to  it,  to  shew  what  the 
custom  is,  just  as  you  receive  evidence  of  a 
custom  with  respect  to  trade. 

The  judges  in  the  courts  of  England  do  de- 
termine all  cases  that  arise  in  the  plantations, 
all  ca8<(S  that  arise  in  Gibraltar  or  Minorca,  in 
Jersey  or  Guernsey,  and  they  must  inform 
themselves  by  having  the  law  stated  to  them. 
As  to  suggestions  with  regard  to  witnesses,  the 
plaintifT  must  prove  his  case,  and  the  court 
must  tuke  care  that  the  defendant  is  qot  sur- 
prised, and  that  he  ha^  a  fair  opportunity  of 
bringing  his  evidence,  if  it  is  a  case-proper  in 
other  respects  fur  the  jurisdiction  of  the  court. 
There  may  be  some  cases  arising  abroad, 
which  may  not  be  fit  to  be  tried  here ;  but  that 
cannot  be  the  case  of  a  governor  injuring  a 
man,  contrary  to  the  duty  of  his  oflSce,  and  in 
violation  of  the  trust  reposed  in  him  by  the 
king's  commission.  If  he  wants  to  send  for 
witnesses  to  prove  his  justification,  and  applies 
to  the  court,  they  will  do  what'this  court  did  in 
a  case  of  a  criminal  prosecution  which  arose 
in  Scotland.  This  court  forced  the  prosecutor 
([and  would  have  put  off*  the  trial  from  day  to  day 
if  he  had  not  submitted  to  it)  to  suffer  the  wit- 
nesses to  be  examined  by  a  commission  where 
the  cause  arose,  who  could  not  be  compelled  to 
come  here.  The  court  obliged  them  to  come 
into  these  terms ;  or,  if  they  did  not,  it  is  a 
matter  of  course,  in  aid  of  a  trial  at  law,  to 
apply  upon  a  real  ground,  and  not  upon  a  ficti- 
tious pretence  of  delay,  to  a  court  of  equity  to 
have  a  commission  and  injunction  in  the  mean 
time;  and  the  court  will  certainly  take  care 
that  justice  shall  be  done  to  the  defendant  as 
well  as  to  the  plaintiff,  who  must  come  with 
witnesses  to  prove  his  case :  and  therefore,  in 
oery  light  in  which  I  see  this  matter,  it  holds 
empnaiically  in  the  case  of  a  governor,  if  it  did 
not  hold  in  respect  of  any  other  man  within 
the  colony,  province,  or  garrison.  But  to 
make  questions  u|M>n  matters  of  settled  law, 
where  there  have  been  a  number  of  actions  de- 
termined, which  it  never  entered  into  a  man's 
head  to  dispute — to  lay  down  in  an  English 
court  of  justice  such  monstrous  propositions  as 
that  a  governor,  acting  by  virtue  of  letters  pa- 
tent under  the  great  seal,  can  do  what  he 
pleases;  that  he  is  accountable  only  to  God 
and  his  own  conscience — and  to  maintain  here 
that  every  governor  in  every  place  can  act  ab- 
solutely; that  he  may  spoil,  plunder,  affect 
their  bodies  and  their  liberty,  and  is  accountp 
able  to  nobody — is  a  doctrine  not  to  be  main- 
taiaed;  for  if  he  is  not  aceouotable  in  thii 
court,  he  is  acooontable  no*where.  The  king 
ID  council  bat  no  jurisdidion  of  this  matter ; 
tb^caanotdo  it  ia  aoytbapei  Ibcy  canool 


give  damages,  they  cannot  give  reparation, 
they  cannot  punish,  they  cannot  hold  plea  in 
any  way.  WheiQever  complaints  have  been 
before  the  king  in  council,  it  has  been  with  a 
view  to  remove  the  governor ;  it  has  been  with 
a  view  to  take  the  commission  from  him  which 
he  held  at  the  pleasure  of  the  crown.  Bat 
sappose  be  holds  nothing  of  the  crown,  sup* 
pose  his  government  is  at  an  end,  and  that  lie 
18  in  Enghmd,  they  have  no  jurisdiction  lo 
make  reparation  to  the  party  injured;  they 
have  DO  jurisdiction  to  punish  in  any  shape  tfale 
man  that  has  committed  the  injuij  :  how  cnn 
the  arguments  be  supported,  that,  in  an  empire 
so  extended  as  this,  every  governor  in  every 
colony  and  erery  province  belonging  to  the 
crown  of  Great  Britain,  shall  be  al^lutely  de- 
spotic, and  can  no  more  be  called  in  question 
than  the  king  of  France  P  and  this  after  there 
have  been  multitudes  of  actions  in  all  our  me- 
mories against  governors,  and  nobody  has  been 
ingenious  enough  to  whisper  them,  that  tbey 
were  not  amenable. 

In  a  case  in  Salkeld,  cited  by  Mr.  Peckbaro, 
there  was  a  motion  lor  a  trial  at  bar  in  an  ac- 
tion of  false  imprisonment  against  the  governor 
of  New- York  ;  and  it  was  desired  to  be  a  trial 
at  bar,  because  the  Attorney  General  was  to 
defend  it  on  the  part  of  the  king,  %vlio  had  taken 
up  the  defence  of  the  governor.  That  case 
plainly  shews  that  such  an  action  existed ;  the 
Attorney  General  hnd  no  idea  of  a  governor's 
being  above  the  law.  Justice  Powell  says,  in 
the  case  of  Way  and  Yally,  in  6  >1uflem,  that  an 
action  of  false'im prison II leut  had  been  brought 
here  against  the  governor  of  Jamaica  for  an 
imprisonment  there ;  and  the  laws  of  the 
country  were  given  in  evidence.  The  gover- 
nor of^  Jamaica  in  that  case  never  thought 
that  he  was  not  amenable.  He  defended  him- 
self. He  shewed,  1  suppose,  by  the  laws  of 
the  country,  an  act  of  the  asseinblv  which  j'lsli- 
fied  that  imprisonment ;  and  the  court  received 
it,  to  be  sure,  as  they  ought  to  do.  Whatever 
is  a  justification  in  the  pluce  where  the  thing  is 
done,  ought  to  be  a  justification  where  the  case 
is  tried.  I  remember  (it  was  early  in  my  time; 
I  was  counsel  in  it)  an  action  against  governor 
Sabine,  and  he  was  very  ably  defended.  No- 
body thought  the  action  did  not  lie  against  him. 
He  was  governor  of  Gibraltar,  and  he  baiely 
confirmed  the  sentence  of  a  court-martial, 
which  tried  one  of  the  train  of  artillery  by 
martial  law.  Governor  Sabine  affirmed  the 
sentence.  This  plaintiff  was  a  carpenter  in  the 
train.  It  was  proved  at  the  trial,  that  the 
tradesmen  that  followed  the  train  were  not 
liable  to  martial  law ;  the  court  were  of  that 
opinion ;  and  therefore  the  defendant  was  guilty 
of  a  trespass  in  having  a  share  in  that  sentenco 
which  punished  him  by  whipping.  There  is 
another  case  or  two,  but  they  don't  occur  to 
me  at  present. 

Let  us  see  now  what  tiie  next  objection  », 
with  regard  to  the  matter  arising  abroad ;  and 
that  is  a  general  ol^ection,  that  as  the  matter 
trast  nbnid,  it  cannot  be  tried  hen  in  Bng* 


tff\ 


Fttbrigas  v.  MostytL 


A.  D.  1775. 


[SSI 


had.    There  is  «  formal  distinctioa  tliat  prt- 
fiilt  ID  oar  eourta,  and  ItkewiMe  a  subataotial 
•w  aa  to  the  locality  of  trials.    The  substantial 
dirtiactioa   is,  where   the   proceedingf  is   in 
nm,  and  where  the  effect  of  the  judgment 
cnneC  be  had  if  it  is  laid  in  a  wrong  place. 
His  is  the  ease  of  all  ejectments  where  pos- 
flSBOQ  is  to  he  delivered  by  the  sheriff  of  the 
SMsty  :  and  as  trials  here  are  in  particular 
SMSties,  the  offieeni  are  county  officers;  there- 
kn  the  judgment  could  not  ha?e  effect  if  it 
was  Mit  laid  in  the  proper  place  and  in  the  pro- 
per county.    But  there  likewise  is  a  formal 
fctiutlioD,  where,  perhaps,  complete  justice 
cssM  he  done,  let  it  be  laid  in  what  county  it 
■ight ;  that  is  mere  matter  of  form  as  to  esses 
that  arise  within  the  realm :  but  even  with  re 
fud  to  matters  that  arise  out  of  the  realm,  to 
he  sore  there  is  a  distinction  of  locality  too ; 
kr  there  are  some  cases  that  arise  out  of  the 
icahn,  that  ought  not  to  be  tried  any  where  but 
is  tlie  county  where  thev  arise,  as  the  esse  al- 
loded  to  by  serjeant  Walker.     If  there  is  a  sort 
tf  fighting  in  France  between  two  Frenchmen, 
and  ihey  happen  both  casually  lo  be  here,  and 
aa  action  of  assault  is  brought  by  the  one 
agsiost  the  other,  which  chart^e  a  criminality 
ISO,  that  it  is  dune  against  the  kinar's  peace, 
aad  the  laws  and  customs  of  England ;  in  that 
case  it  nsay  be  a  very  material  question  whe- 
Ihtr  that  could  be  mamtaineil  here:  for  though 
it  is  not  a  criminal  prosecution,  yet  it  has  that 
sort  of  criminality  that,  perhaps,  without  giring 
aa  opinion,  it  ought  to  be  tried  by  the  laws  of 
that  country  where  both  parties  are  subjects; 
it  may  he  a  substantial  obj(*ction  of  locality.    So 
llewise,   if  it  is  concerning  an  estate  in  ^ 
favi^  country,  where  it  is  a  matter  of  title 
md  not  of  damages,  it  roa}^  be  a  substantia) 
teioction.      There  is  likewise  a  question  of 
ftrm,  and  that  arises  upon  the  trial ;  for  trials 
ia  England  being  by  a  Jury,  and  the  kinjj^dom 
hnmg  divided  into  counties,  and  every  county, 
ii  respect  of  trial,  considered  almost  as  if  a 
aepvate  kingdom  or  principality,  it  is  absolute- 
ly necessary  that  there  should  be  some  county 
where  the  action  is  particularly  brought,  that 
there  may  be  a  process  to  the  sheriff  of  that 
coonty,  to  bring  a  jury  from  thence  to  try  it ; 
and  that  is  matter  of  form,  which  goes  to  all 
cases  that  arise  abroad.     But  the  law  makes 
a  distinction  between  transitory  actions  and 
Iscal  actions.      If  the  matter  which  is  the 
caose  of  a  transitory  action  arises  within  the 
realm,  it  may  be  laid  in  any  county ;  the  place 
is  not  material:    and  if  an  imprisonment  in 
Middlesex,  it  may  be  laid  in  Surrey;    and 
though  proved  to  be  done  in  Middlesex,  the 
place  not  being  material,  it  does  not  at  all  pre- 
vent the  plaintiff  recovering  damages :  for  the 
eace  of  transitory  actions  is  never  material. 
ut  where,  by  particular  acts  of  parliament,  it 
is  made  so,  as  in  the  case  of  churchwardens 
and  constables,  and  other  cases  that  require  the 
action  to  be  brought  in  the  county  ;  there,  by 
the  force  of  the  act  of  parliament,  the  objection 
li  fttal:  hot  otherwise  it  mutt  be  laid  in  any 


I 


eonnty  in  England,  let  it  be  done  where  it  will : 
the  parties  bad  an  opportunity  of  applying  to 
the  court  in  time  to  change  the  venue.  But  if 
they  go  to  trial  without  it,  that  is  no  objeo- 
tion ;  and  all  actions  of  a  transitory  natnre  that 
arise  abroad  may  be  laid  as  happening  in  an 
English  county.  But  there  are  occaaions  which 
make  it  absdately  necessary  to  state  in  the  de- 
claration, that  it  really  happened  abroad ;  as  in 
the  case  of  specialties,  where  the  date  must  be 
set  forth.  When  an  action  is  brought  npon  a 
specialty  which  bears  a  date,  if  that  specialty  is 
set  out,  or  if  oyer  is  prayed  of  it,  by  which  the 
place  where  it  was  made  must  appear;  if  the 
declaration  states  it  to  hare  been  made  at  WesI- 
minster,  in  Middlesex,  and  ufNin  producing  the 
deed  it  bears  date  at  Bengal,  ttiere  is  a  variance ' 
between  the  deed  and  the  declaration,  which 
makes  it  appear  to  be  a  different  instrument.  I 
don't  put  lue  case,  though  there  are  some  in  the 
books  that  seem  to  me  to  have  confounded  the 
statute  of  the  6th  of  Richard  the  second,  there- 
fore I  don't  put  the  objection  upon  the  6.th  of 
Richard  the  secoud ;  but  it  goes  singly  u|kmi  this : 
if  yon  don't  state  the  true  date  or  true  description 
of  the  bond,  it  is  a  variance.  W  bat  does  the  law 
in  that  casef  (and  it  has  done  it  for  hundreds 
of  years)  Why,  the  law  invented  a  fiction,  and 
has  said,  **  You  ahall  set  out  the  description 
truly,  and  then  give  a  venue  only  for  form  for 
the  trial;  videlicet ^  in  the  county  of  Middlesex^ 
or  any  other  county  you  please."  Did  any 
judge  ever  think  that  when  the  declaration 
said,  in  fort  St.  George  in  Cheapside,  that  the 
plaintiff  meant  that  it  was  in  Cheapside  ?  No  ; 
It  is  a  fiction  in  form  :  every  country  has  its 
forms :  it  is  for  the  furtherance  of  justice  that 
these  fictions  were  invented  ;  to  i^et  rid  of  for- 
malities ;  to  further  and  advance  justice.  This 
is  a  certain  rule :  you  never  shall  contradict 
the  fiction  so  as  to  defeat  the  end  for  which  it 
was  invented,  but  you  may  contradict  it  for 
every  other  purpose.  Now  this  fiction  is  in- 
vented barely  for  the  mode  of  trial ;  to  every 
other  purpose  you  shall  contradict  it,  but  not 
for  the  purpose  of  saying.  You  shall  uot  try  it. 
It  is  just  like  that  qne»iti<tn  that  was  long  agi- 
tated and  finally  determined  some  years  ago, 
npon  a  fiction  of  the  teste  of  writs  taken  but  in 
the  vacation,  which  bore  date  as  of  the  last  day 
of  the  term.  That  is  a  fiction  of  the  Court. 
You  never  shall  contiadict  that  fiction,  and  go 
into  the  truth  of  the  case,  to  destroy  the  wnt, 
and  shew  it  a  bad  writ.  Why  P  Because  the 
Court  invented  the  fiction  to  make  the  writ 
good,  for  the  furtherance  of  justice,  that  it  may 
appear  right  in  the  form  ;  but  for  every  other 
purpose  in  the  world  you  may  contradict  it.  I 
am  sorry  to  observe  there  are  some  sayings 
which  have  been  alluded  to,  inaccurately  taken 
down.  Perhaps  there  were  short-hand  writers 
in  those  days,  as  there  are  at  present,  who  mis- 
take every  word  they  hear,  and,  being  unable 
to  correct  it,  have  printed  it  improperly  :  but 
to  say,  that  as  meu  they  have  one  way  of  think* 
ing,  and  as  judges  they  have  another,  is  an  ab« 
surdity.    Ko;  they  meant  to  support  the  fio* 


935] 


n  GEORGE  III. 


Action  Jur  Fake  Imprisonment-^ 


[236 


lion.  I  will  meDtion  a  case  or  two  to  shew  that 
is  the  meanings  of  it  There  is  a  case  in  6 
HodeiD,  208,  of  Roberts  aod  Hama||re.    The 

gUuntiff  declares,  that  the  defendant  became 
oond  to  him  at  Fort  St.  Davids  in  the  East 
Indies  at  London,  in  such  a  bond.  Upon  de- 
murrer the  objection  was,  that  the  bond  ap- 
red  to  ha?e  been  sealed  and  delifered  at  fort 
David's  in  the  East  Indies,  and  therefore 
the  date  made  it  local ;  and,  bv  consequence, 
the  declaration  ouf^ht  to  have  Geen  of  a  bond 
poade  at  Fort  St.  David's  in  the  East  Indies, 
▼iz.  at  Islinjg^ton  in  the  county  of  Middlesex,  or 
in  such  a  ward  or  parish  in  Liondon ;  and  of 
that  opinion  was  the  whole  Court.  You  see 
how  this  case  is  stated.  But  1  wilt  state  it  from 
another  book,  where  it  is  reported  more  truly  ^ 
I  mean  in  lord  Raymond,  1042.  There  it  is 
stated  thus.  It  appeared  by  the  declaration, 
that  the  bond  was  made  at  London,  in  the  ward 
of  Cheap.  Uiion  oyer,  the  bond  was  set  out, 
and  it  appeared  on  the  face  of  it  to  be  dated  at 
fort  St.  George  in  the  East  Indies.  The  de- 
fendant pleaded  the  Tariance  in  abatement,  and 
the  plaintiff  demurred,  and  it  was  held  bad; 
but  the  Court  said,  that  it  would  have  been 
good,  if  laid  at  Fort  St.  George  in  the  East 
Indies,  to  wit,  at  London,  in  the  ward  of 
Cheap.  What  was  the  objection  there  ?  Why, 
they  had  laid  it  fulsetv.  They  had  laid  the 
bond  as  made  at  London.  The  bond  is  pro- 
duced, and  appears  to  be  made  at  another 
place :  that  is  a  variance.  You  must  take  the 
iN>nd  as  it  is.  Then  how  do  you  get  to  trial  ? 
Wliy,  introduce,  a  fiction,  and  the  formality 
fi'ifea  you  the  trial  in  that  county  by  the  vide- 
licet ^  and  the  bond  is  truly  described.  A  case 
was  quoted  from  Latch,  and  a  cage  from  Lut- 
wyche,  ou  the  former  argument ;  but  1  will 
mention  a  case  posterior  in  point  of  time,  where 
the  Court  took  it  up  upon  the  true  ground, 
Dvliere  both  these  cases  were  cited,  and  no  re- 
gard at  all  was  paid  to  them  ;  and  that  is  the 
case  of  Parker  and  Crook,  10  Modern  255. 
This  was  an  action  of  covenant  upon  a  deed 
indented.  It  was  objected  to  the  declaration, 
that  the  defendant  is  said  in  the  declaration  to 
continue  at  Fort  St.  George  in  the  East  Indies ; 
and  npon  the  oyer  of  the  deed  it  bears  date  at 
Fort  St.  George ;  and  therefore  the  Court,  as 
was  pretended,  had  no  jurisdiction.  Latch, 
fol.  4.  Lutwyche,  .OG.  Lord  chief  iustice  Par- 
ker said,  that  an  action  will  lie  lu  England 
upon  a  deed  dated  in  foreign  parts,  or  else  the 
party  can  have  no  remedy  ;  but  then,  in  tiic 
declaration,  a  place  in  England  must  be  al- 
ledged,  proJomiA,  Generally  spec^king,  the 
deed,  upon  the  oyer  of  it,  must  be  consistent 
with  the  declaration  ;  but  in  these  cases  prop- 
ter neccssitatemt  if  the  inconsistency  be  as  little 
as  possible,  not  to  be  regarded :  as  here,  the 
contract,  lieing  of  a  voyage  which  was  to  be 
performed  from  Fort  St.  George  to  Great  Bri- 
tain, dors  im|>ort,  that  Fort  St.  George  is  dif- 
ferent from  Great  Britain :  and  atUr  taking 
time  to  consider  of  it,  in  Hilary  term  the  plain- 
iiir  bad  his  judgtncDt^notwitltttaBding  the  ob- 


jection. Why  then,  it  all  amounts  to  this: 
that  where  the  action  is  substantially  such  a 
one  as  the  Court  can  hold  plea  of,  as  the  mod« 
of  trial  is  by  jury,  and  as  they  must  be  called 
together  by  process  directed  to, the  sheriff  of 
the  county,  matter  of  form  is  added  to  the  fic- 
tion, to  say  it  is  in  that  county ;  and  then  the 
whole  of  the  inquiry  is,  whether  it  is  an  action 
that  ought  to  be  maintained.  But  can  it  lie 
doubted,  that  actions  may  be  maintained  beret 
not  only  upon  contracts,  which  follow  the  per- 
sons, bat  for  injuries  done  by  subject  to  subject ; 
especially  for  mjuries  where  the  whole  that  is 
prayed  is  a  reparation  in  damages,  or  satisfac- 
tion  to  be  made  by  process  against  the  persoo 
or  his  effects  within  the  jurisdiction  of  the 
Court?  We  know  it  is  within  every  day's  ex- 
perience. I  was  embarrassed  a  great  while  to 
find  out  whether  it  was  really  meant  to  make 
a  question  of  it.  It  is  so  in  sea- batteries ;  but 
is  It  to  be  supposed  that  the  judge  thought  it 
happened  in  Cheapside,  when  the  partjr  proves 
where  the  place  was?  In  sea-batteries,  the 
plaintiff  of\en  lays  the  injury  to  have  been  done 
\n  Middlesex,  and  then  proves  it  to  be  done  a 
thousand  leagues  distant,  on  the  other  side  of 
the  Atlantic.  There  are  cases  of  offences  on 
the  high  seas,  where  it  is  of  necessity  to  lay 
in  the  declaration,  that  it  was  done  upon 
the  high  seas ;  as  the  taking  of  a  ship  as  a 
prize.  A  case  of  that  sort  occurs  to  my  me- 
mory : — the  reason  1  remember  it  is,  because 
there  was  a  question  about  the  jurisdiction. 
There  likewise  was  an  action  of  that  kind  before 
lord  chief  justice  Lee,  and  another  before  me,  in 
which  I  quoted  that  determination,  to  shew  that 
when  the  lords  commissioners  of  prizes  have, 
given  judgment,  that  is  conclusive  in  the  action  ; 
and  likewise,  when  they  have  given  judgment, 
it  is  concluitive  as  to  the  coNts,  whether  they 
have  given  costs  or  not.  But  how  is  that  actioa 
laid  ?  It  is  necessary  to  be  laid,  that  his  ship  waa 
taken  or  seized  on  the  hiiih  seas,  videlicet^  in 
Cheapside.  Now  is  it  seriously  contended,  that 
the  judge  and  jury,  and  counsel,  who  trieil  the 
cause,  fancied  that  ship  was  sailing  in  Cheap- 
side  ?  No ;  it  is  plain  sense ;  the  sliip  was 
taken  upon  the  high-seas,  for  which  an  actioa 
lies  in  England ;  and  you  say  in  Cheapside, 
which  is  saying  no  more  than  that,  I  pray  this 
action  may  he  tried  in  London ;  it  is  plainly 
understood:  but  if  you  offer  reasons  of  fact 
contrary  to  the  truth  of  the  case,  there  is  no 
end  of  the  embarrassment.  At  the  last  sittings^ 
there  were  two  actions  brought  by  the  Arme- 
iii  Ml  merchants  for  assaults  and  trespass  in  the 
Esbt- Indies,  and  they  are  very  strong  autho- 
rities. >-MJeant  Glynn  said,  that  the  defendant, 
Mr.  Vert  I  St,  was  ably  assisted.  So  he  was; 
and  by  men  who  would  have  taken  the  objec- 
tion, if' they  thuught  it  had  been  maintainable: 
and  that  was  atier  this  case  had  been  argued 
once ;  yet  the  counsel  did  not  think  it  could 
be  su|»ported.  Mr.  Verelst  would  have  been 
glad  to  have  made  the  objection :  he  would  not 
nave  lefi  it  to  a  jury,  if  he  could  have  6to|»prd 
them  short,  and  said^  '<  You  tball  not  try  it  al 


837] 


Tahrigat  r.  Mostt/n. 


A.  D.  177». 


[«8 


•U.''  I  liATe  had  some  actions  before  me,  go- 
isgralber  further  than  these  transitory  actiuns ; 
fut  isy  goiBg  to  caws  which  in  Eugland  would 
It  local  actions :  and  1  remember  one,  I  think 
h  waa  ao  action  brought  against  captain  Gam- 
Vcr,  who  by  order  of  admiral  Boscaweu  bad 
yaUed  down  the  houses  of  some  suttlers  who 
nppUed  the  navy  and.  sailors  with  spirituous 
i|Mrs;  and  whether  the  act  was  right  or 
vroog,  it  was  certainly  done  with  a  good  in- 
teatioD  OD  the  part  of  the  admiral,  for  the  sai- 
lors' health  were  affected  by  it.  They  were 
palled  down.  The  captain  was  inattentiTc 
cBongh  to  bring  the  gentleman  oTcr  in  his  own 
sh*p,  who  would  never  have  got  to  England 
stnerwise ;  and  as  soon  as  he  came  here,  he 
was  admed  that  he  should  bring  an  action 
Minal  him.  He  brought  his  action,  and  one 
SI  the  eounts  in  the  declaration  was  for  pulling 
dawn  the  houses.  The  objection  was  taken  to 
Ibe  eoont  for  pulling  down  the  houses;  and 
the  case  of  8kinner  and  the  East  India  Com- 
pany was  cited  in  support  of  the  objection.  On 
Ibe  other  side,  they  produced,  from  a  manu- 
seript  note,  a  case  before  lord  chief  justice 
Eyre,  where  he  o?er-niled  the  objection  ;  and 
I  ofcr-niled  the  objection  upon  this  principle, 
that  the  reparation  here  was  personal,  and 
Isr  damagea ;  that  there  would  be  a  failure  of 
joslicey  ror  it  was  upon  the  coast  of  No?a 
^  '  I,  where  there  were  no  regular  courts  of 
^  but  if  there  bad  been,  captain  Gambier 
It  nerer  go  there  again  ;  and  that  the  rea- 
ssn  of  locality  in  such  an  action  in  England 
did  not  bold  in  this  case.  I  quoted  a  case  of 
aa  iniory  of  thaiaort  in  the  East- Indies,  where 
eiea  io  a  court  of  equity  lord  Hardwicke  had 
fcecled  aatisfaction  to  be  made  in  damages. 
Thai  case  was  not  fuUy  argued ;  but  this  was 
aigiied,  and  there  were  larcfe  damages  gi?en 
against  Gambier.  I  do  not  quote  it  for  the 
apinioa  1  was  of  there,  because  that  opinion  is 
my  likeiy  to  be  erroneous ;  but  I  quote  it  for 
ibis  reaaoB,  that  there  were  large  damages 
fireo  against  captain  Gambier :  and  though  he 
vaa  not  at  the  ezpence,  for  he  acted  by  the  or- 
dera  of  admiral  Boscaweu,  yet  the  admiral's 
RpresentatiTea  paid  the  ezpence,  therefore  their 
inelination  was  to  hare  got  rid  of  that  verdict  if 
they  eonid  ;  but  there  never  waa  any  motion 
iar  a  new  trial.  1  recollect  anotbt* r  cause  that 
on  before  me :  that  was  the  case  of  ad- 
Pailiser ;  there  the  very  gist  of  the  ac- 
was  local.  It  was  for  destroying  fishing- 
birta  opon  the  liabrador  coast,  it  was  a  nice 
^ucstiuo;    when  the  Canadians  settled,  and 


when  they  had  a  right  to  it.  It  was  a  dispute 
between  them  and  the  fishermen  in  England. 
The  cause  went  on  a  great  way :  the  defendant 
would  have  turned  it  short  at  once,  if  he  could 
have  made  that  objection ;  but  that  objec- 
tion was  not  made.  There  are  no  local  courta 
among  the  Esquimaux  Indians  upon  that  part 
of  the  Labrador-coast.  Whatever  injury  had 
been  done  there  by  any  of  the  king's  officers 
would  have  been  altogether  without  redress,  if 
that  objection  of  locality  would  have  held :  and 
the  consequence  of  that  circumstance  shews, 
that  where  the  reason  fails,  even  in  actions 
which  in  England  would  be  local  actions,  yet 
that  does  not  hold  to  places  beyond  the  seas 
within  the  king's  dominions.  That  of  admiral 
Palliser's  went  off  ufion  a  proposal  of  a  re- 
ference, and  ended  by  an  award.  But  as  to 
tranaitory  actiona,  there  is  not  a  colour  of  doubt 
but  that  every  action  that  is  transitory  may  be 
laid  in  any  county  in  England,  though  the 
matter  arisea  beyond  the  aeas :  and  when  it  is 
absolutely  necessary  to  lay  the  truth  of  the 
case  in  the  declaration,  there  is  a  fiction  of  law 
to  assist  you,  and  you  shall  not  make  use  of  the 
truth  of  the  case  against  that  fiction,  but  you 
oMiy  make  use  of  it  to  every  other  purpose.  I 
am  clearly  of  opinion  not  only  against  the  ob* 
jections  made,  but  that  there  does  not  appear  a 
question  upon  which  the  ohjectiona  could  arise. 

The  other  judges  declared  themselves  of  the 
same  opinion,  and  the  Court  ordered,  **  That 
the  judgment  should  be  affirmed." 

In  consequence  of  the  above  judgement,  on 
Saturday  the  4th  day  of  February  1775,  the 
gentlemen  who  were  bail  for  governor  Mostyn, 
to  prevent  his  being  taken  in  execution  and 
carried  to  prison,  were  obliged  to  pay  to  Mr. 
Fabrigas  the  sum  of  S,000/.  for  his  damages, 
and  159/.  which  the  Court  amerced  the  go- . 
vernor  in  costs. 


I  have  not  ventured  to  alter  the  nonsensical 
passages  in  the  former  report  of  this  case.  The 
case  in  Shower,  which  is  alluded  to  in  p.  115, 
I  suppose  to  be  that  of  sir  Richard  Dutton 
V,  Howell  and  others,  executors  of  Witham« 
p.  24. 

See  the  Case  of  Louisa  Calderon  «.  General 
Pictoo,  B.  R.  A.  D.  1809. 

See,  also,  the  following  Case  of  the  Island  of 
Grenada  (Campbell  v.  Hall),  and  the  Canadian 
Freeholder,  as  therein  cited. 


SS9] 


15  GEORGE  IIL         The  Case  ^f^e  Island  cf  Grenada^         [flO 


550.  The  Case  of  the  Island  of  Grenada;  in  relation  to  the  Payment 
of  Four  and  one-half  in  the  Hundred  of  Goods  exported  there- 
from;« between  Alexander  Campbell^  esq.  Plaintiff,  and 
Wm.  Hall,  esq.  Defendant,  in  the  Court  of  KingVBenchy  be- 
fore Lord  Chief-Justice  Mansfield :  15  George  III.  a.  d.  1774. 


£The  foUowiog  acooont  of  this  Case  is  com- 
piled from  the  Reports  of  Mr.  Lofft  and  Mr. 
Henry  Cowper,  together  with  the  short-band 
writer's  report  of  the  Arguments  of  Mr.  Mac- 
donald  (now  Lord  Chief  Baron  of  the  Ex- 
chequer), and  Mr.  HargraTe.  Both  those 
learned  persons  hare  assented  to  the  publi- 
cation of  this  Manuscript,  which  was  im- 
parted to  roe  by  Mr.  Hargrave,  with  his  ac- 
customed kindness  of  assistance  in  the  im- 
proFement  of  this  Work.] 

This  cause  came  on  to  trial  before  the  right 
honourable  William  lord  Mansfield,  on  Friday 
the  2d  of  July,  at  the  sittings  aRer  Trinity 
term,  for  the  city  of  London,  at  Guildhall,  when 
a  special  Terdict  was  found.  The  proceedings 
in  the  cause  were  as  follows : 

*  Trinity-term,  in  the  Idth  year  of  the  reign  of 

^  king  George  the  third.  « 

*  London  to  wit.    Be  it  remembered,  that 

*  heretofore,  that  is  to  say,  in  Easter-term  last 

*  past,  before  our  lord  the  king  at  Westmins- 
^  ter,  came  Alexander  Campbell,  esq.  by  Ben- 

<  jamin  Uosewell,  his  attorney,  and  brought  in 

*  the  court  of  our  said  lord  the  king  then  there, 

*  his  bill  against  William  Hall,  esq.  being  in 

<  the  custody  of  the  mar&hal  of  the  Marshalsea 

*  of  our  said  lord  the  king,  before  the  king  him- 

<  self,  of  a  plea  of  trespass  on  the  case ;  and 

*  there  are  pledges  for  the  prosecution,  to  wit, 
*John  Doe  and  Richard  Roe.    Which  said 

<  bill  follows  in  these  words,  to  wit,  London,  to 

*  wit,  Alexan«ler  Campbell,  esq.  complains  of 

*  William  Hall,  esq.  being  in  the  custody  of  the 

*  marshal  of  the  Marshalsea  of  our  lord  the 

<  king  himself,  of  a  plea  [of  trespass  on  the 

*  case ;  and  also]  for  that  wtiereas  the  said  Wil- 

<  lism,  on  the  first  clay  of  January,  in  the  year 
^  of  our  Lord  1773,  at  London  aforesaid,  to  wit, 

*  in  the  parish  of  8t.  Mary-le-Bow,  in  the 

<  ward  of  Cheap,   was  indebted  to  the  said 

<  Alexander  in  the  sum  of  20/.  of  lawful  money 

*  of  Great  Britain,  for  the  like  sum  of  money 

*  by  the  said  William  before  that  time  had  and 

*  receif  e<l,  for  and  to  the  use  of  the  said  Alex- 

<  ander :    and  being  so  indebted,  be  the  said 

*  William,  in  consideration  thereof,  afterwards, 

*  to  wit,  on  the  same  day  and  yoar  aforesaid,  at 

*  London  aforesaid,  in  the  parish  and  ward 
« aforesaid,  undertook,  and  to  the  said  Alei- 

*  ander  than  and  there  faitbfnilj  pnHniieditluit 


«  be  the  said  William  wonld  well  and  truly  pay 
'  and  satisfv  the  said  Alexander  the  said  sum  of 

*  money  wnenever  he  the  said  William  should 
*•  be  thereunto  afterwards  required.    Yet  the 

<  said  William,  not  regardinic  his  said  promise 

*  and  undertaking,  but  contriTiog  and  fraudii- 

*  lently  intending  crsAily  and  subtilly  to  de- 

<  ceive  the  said  Alexander  m  this  behalf,  hath  not 

<  paid  the  said  Alexander  the  said  sum  of  money, 

*  or  any  part  thereof,  (althonffh  the  said  Wu- 

*  liam  afterwards,  to  wit,  on  the  same  day  and 

*  year  aforesaid,  and  often  afterwards,  at  Lon- 

*  don  aforesaid,  in  the  parish  and  ward  afore- 
said, was  by  the  said  Alexander  required  so 

*  to  do)  but  to  pay  the  same,  or  any  part  there- 

<  of,  to  the  said  Alexander  he  the  said  William 

<  bath  hitherto  altogether  refused,   and    atUI 

<  doth  refuse,  to  the  damage  of  the  said  Alex- 

*  ander  of  20/.    And  thereof  he  brings  bis 

*  suit,  &c.' 

'*  And  now  on  this  day,  to  wit,  on  Friday 
next  after  the  morrow  of  the  Holy  Trinity,  in 
this  same  term,  (to  which  said  day  the  said 
William  had  leave  to  imparle  to  the  said  bill, 
and  then  to  answer,  &c.)  before  our  lord  the 
king  at  Westminster,  comes  as  well  the  said 
Alexander,  by  his  attorney  aforesaid,  as  the 
said  William,  by  Robert  Want,  his  attorney  ; 
and  the  said  William  defends  the  wrong  and 
injury.  When,  &c.  and  says  he  did  not 
undertake  and  promise  in  manner  and  form  as 
the  said  Alexander  Campbell  above  complains 
against  him.  And  of  this  he  putti  himself  upon 
the  country ;  and  the  said  Alexander  doth  the 
like. 

**  Therefore  let  a  jury  thereupon  come  before 
our  lord  the  king  on  Wednesday  next  after 
three  weeks  of  the  Holy  Trinity,  by  whom  the 
truth  of  the  matter  may  be  better  known,  [and 
who  neither  are  of  kin  to  the  aforesaid  Alex- 
ander nor  to  the  aforesaid  William]  to  reco^ 
nize  the  truth  of  the  issue  between  the  said 
parties,  because  as  well  the  said  Alexander  as 
the  said  William,  between  whom  the  issue  is, 
have  put  themselves  iipun  the  said  jury.  The 
same  day  is  given  tu  the  party  aforessid. 

**  Afterwards  the  process  being  continued 
between  the  parties  aforesaid,  of  the  plea  afore- 
said, by  the  jury  between  them  being  respited 
(before  our  lord  the  king,  at  Westminster,  enlfl 
Saturday  next  after  the  morrow  of  All  8o>* 
then  next  fulk»wing,  aolM  the  *^* 
tmsty  and  weH  bderiw* 
fidd,  hie 


CamphcU  V.  HaU. 

W  Mtie  on  F>  iday  the  lil  dny  or  July 

C  Guililhall  uf  iliR  L'lly  ul'  Ijonilon,  RCcnrd' 

>  lh(t  Torm  of  Ihe  sMtule  in  iticb  ca»e 

kmnd  |ir<»iilc<1)  Tar  dernull  of  jurors,  be- 

^^»  none  of  tbrni  did  appear. 

"  4|  wbich  ilo^,  bvrore  our  Inrd  Ihe  king' 
«  WpatrainsUT,  cRine  (he  aroresatd  Atexaodcr 
CtApfaeH,  by  lh«  saiil  B^nJEimin  Rnipwell,  bis 
flMney  aturMihl,  Arid  tlie  lajd  cbicf  justtce, 
trftn  <*b«nt  iIh  inii>>  wh*  iriid,  smi  liilber  his 
rvenrd  had  in  thoe  words,  lo  wir,  '■  ■  After- 
'  varrfi,  that  n  in  say,  nn  the  itny  *nd  at  (he 
■ftbee    whyn    ronturneil,    beforp    the   righl 

■  liOMWraMe  WiOiani.  lord  M*intiv1<1,  iheebief 
■jadJM  within  written,  John  Way.  suntlemftn, 
'Wn^  naaoUted  unio  hln  according  to  the 
'  bm  or  the  dalnte  In  Ihat  vane  mide  ind  nn>- 
'  tried,  femes  an  wHI  the  wilhin  namei)  Alex- 

■  aaJer  Campbell,  emf.  by  bis  itioroey  within 
'  «wncd,  ■<«  Ihe  wiiliin  named  Willlani  HatI, 
'  et^.  by  his  Dttornry  u-ttbin  menlioned. 

■'  ■  Ami  the  jarors  of  Ihe  jury  within  men- 
'led  hrios  sufflnioneil,  soineol'  ibem,  that 

■  to  «y,  Anthony  Hitrhiiiore.  Peler  Bostock, 
[iifid  ('hsmbere,  JaniPB  L«  Molle,  John 
«rltim-iiii,  Jnshun    Bedshew,  and   Siltanns 

■  fifoi*.  erne,  and  are  sworn  upon  Ihni  jnry; 
'  (oil  lT,->ii«e  ihe  residue  of  the  jiiror«  of  the 
'  Mine  j'l'V  dii  not  Bi'pear,  Iherel'ore  other  per- 

■  wfo^  "t  lli'iie  BtandiriB  liy  ibe  court,  by  the 
'  (hrrifla  of  the  city  anil  cntinty  aforeaaid,  at 
'  Ihcrrqursl  of  ihe  said  Alrxto'li'r,  Bud  by  (he 
'  fDrnmaud  o1'  the  sniil  chid'  justice,  are  now 

■  •^•Ijf  mH  down,  w  hose  names  are  fiW  io  Ihe 
•  ifbm  wriliei)  lunnel,  aeeordini;  to  the  form 


u  thct  f 


«..r  r 


■  .W  WHieh  sbM  jumrs,  so  newly  nel 
<■■•«,  ilml  Is  tn  aay,  Jol>n  Lee,  Willl^im  Ker- 
.,    Cbafin  Huui^ham,  John  G<>riiMt].  and 

'IrHurJ  Hull,  bein;  required,  come,  whn, 
ii;-lher  with  tlie  uidniher  jurors  before  i»n- 

•  ai«(|ed,  anitswnm  to  declare  the  Inrtli  of 

c  wiihin  cootenu,  being  elected,  tried,  and 

'•len,  iipiin  their  oaths  say, 

'  '  ThJiiheialtndorUrenada.inthe  West- 
l--i«».  wa^tn  Ihe  iiosseaeioa  of  ihe  French 
Lirif  until  it  WHS  cnn(iuered  by  ihe  British 
I'-naiM  17*2.     And  timt  during  that  posses- 

■  ••■  lh«r<>  "Vre  certain  CiKtoms  and  impost 


rnrtadi^ 


)  Bndool  n 


nnrted  and  e: 


Nt  MMlMrTly  of  hn  inoit  Christian  majesty. 

•  m£  ihM  in  the  said  yew  iroe,  'be  said  island 
*«»  eo»|wrcd  hy  the  kitte  nf  Great  Brilaln, 
■MaiiA  opM  war  with  the  French  kini{;  and 
•Art ikaMud  kslandoTtirenada  ■un'cndcred  to 
'A*  Bniish  arm*  upon  the  Kame  article* of 
■•■Inilallim  aa  had  be^n  befi>re  i-ranted  to  Ihe 
•wMtanunr  ihe  island  of  MuriioiM,  u|ion 
'lb*  (BrrtBder  ihertof  lo  the    BHliih   arms. 

*  Im*  tbai  in  the  ■nulet  of  capiliitatinD  de< 
■  a—ill  hv  and  rranii'd  tn  the  itihsbltanlf  of 
'ttPMidlaUMlul  Maninico,  upon  iheaurren- 

B  Briihh  arms,   dated  the 
re  Ihe  tbllawing 

tlia!lb«>triot<y 


A.  D.  177*. 


[84* 


'  neuter,  and  shall  nol  be  nliliifeil  to  tale  arma 
'  against  his  most  Christian  mnjesiy ;  nur  even 
'  aflinsl  any  other  power. 

"  '  Answer — They  become  snbjeciK  of  bis 
'  Briton Dtc  majesty,  and  mtlil  take  theoalh  of 
'  allfginnce,  bul  snail  nnl  I'e  obliered  to  tuke 
'  Brma  a^inst  bis  most  Chrialiun  inajesly  until 
'  a  peacb  mat  determine  the  l'«ie  of  the  islnnil. 

•■ '  Article t]le tilth— Thet  shall  pmerrelheir 
'  citil  govermnent.  their  laws,  eustiiiRR,  ond 
'  ordinances ;  justice  kIihII  be  administered  by 
■the same  officers  who  are  now  in  eirploy- 
'  meot ;  and  ihere  shall  be  a  reifiilaiiiin  made 

*  for  the  inleriur  police  between  the  noremur  i>f 
'his   Britannic  msjeslv  end   the  iiihabilnnU: 

*  and  in  ease  that  ul  liie  pearc  Ihe  ii<[niid  sliall 
'  he  ceded  to  Ihe  hinK  of  Great  Britain,  it  shall 
'  be  alluwed  to  the  inlTsbilania  In  prnerre  their 
'  polilical  ^niernnient.  and  lo  accept  that  of 
'  Anii(;uaorf<t.  Chris- 0| .her'*. 

"  '  Answer— TTiey  become  Btiiish  siiljerta, 
'  (as  in  Ihe  inveedini;  article)  but  MbaDcontiniie 

•  tn  be  pirerneil  hy  their  present  laws  unltl  hii 

■  majeity'a  pleasure  be  hnou  n. 

" '  Articlethe  sixth- The  inbabilniils,  as  atsa 
'  (be  re)ii;iou3  orders,  of  bntli  arxes,  thill  be 
'  niaintained   in   Ihe  pr0|rerly  of  I  heir  eftecis, 

■  mofeable  and  iinniOT<-ahte|  of  what  natiir^ 
'  soever,  and  shall  be  preferred  in  their  privi. 
<  le^es,  rights,  hnnuurs,  and  exempliniis ;  Ihei^ 
'  free  neirroes  and  mulatioes  shall  have  the  en- 
'  lire  enjoyment  of  ibeii-  liberty. 

"' Granted,  in  rf[;ard  to  the  rehgions  orders — 
'The  inhahiiants.bein^siitgectsof  Great  Bri- 
'  fain  will  eujny  tbeir  properties,  and  llie  same 
'  jtriTileges  at  in  the  other  bis  majesty's  Lee- 

■  Ward  islands.' 

" '  Anicfe  (he  seienlh— They  shsH  not  pay  tii 

■  bis  majealy  brv  oilier  duties  ttian  those  n  hicli 
'  hove  liecn  paid  bltberin  to  his  moat  Christian 
■majesty;  and  the capilnli'Mi  of  negroes  ujhiii 
'  the  same  roaiini;  it  is  paTd  at  present,  without 
'flwy  oiher  dian^es  or  imposts:  and  the  ex- 

■  fences  of  insiii^e,  peniiuns  in  curates,  and 
'  other  occasional  e»iieocf a,  abill  be  paid  hf 

•  the  domain  of  his  Britannic  majesty,  as  ihey 
'  were  hy  that  of  his  mosi  Obrislian  mtijeily.' 

"  ■  Anawercd  in  the  tixth^artide,  as  to  whil 
regards  Ihe  iohabitants. 

"  '  Article  the  elereolh— No  other  than  iho 
'  inbabitanta  resident  in  ibis  island  shall,  till  the 
'  peace,  pmsess  any  eslBles,  either  by  acquisU 
'  tion,  aRTeement  or  ulherwi-ie :  but  in  case  ai 
'  Ihe  peace  the  connlry  shall  be  eedi-d  lo  (he 

*  king  of  Great  Britain,  then  it  shall  be  per- 
I  milled  10  Ihe  inhabitants,  who  shall  nol  be 
'  willing  to  become  bis  suljects,  to  sell  their 
'  Mtates,  moTratrie  and  immnreable,  in  whom 
>  they  please,  ami  retire  where  they  sbill  ihink 

■  (iriiprr ;  in  which  caie  they  ahail  be  alloweJ 

■  eonveliieni  lime.     [  tnswer]     All  suhjecH  of 

■  Oieat    Britain    may    |Kii«e«s    any    Innils  or 

•  hniiies  by  purchase.     The  remainder  nf  ihis 

■  article  granted,  ptoTided  ihey  sell  to  British 

"  And  the  juron  afnresuid,  n)inn  their  oaiha 
aforesaiil  funher  say— That  iu  ibe  deliutlire 
B 


213] 


15  GEORGE  .III.  The  Case  of  the  Island  of  Grenada-^         [944 


treaty  of  peace  aud  friendship  between  his 
BriUDoic  majesty,  the  most  Christian  king^ 
and  the  kinfi^  of  Spain,  concluded  at  Paris  the 
10th  (lav  of  February  1763,  amongst  others 
are  the  toilowin(f  articles : 

**  *  Article  the  fourth^His  n^ost  Christian 

*  majesty  renounces  all  pretensions  which  he 

*  has  heretofore  formed  or  mi«<;lit  form  to  Nova 

*  Scotia,  or  Acadia,  in  all  its  parts ;  and  gua- 

*  ranties  the  whole  of  it  and  with  all  its  depen- 

*  daiicies  to  the  king  of  Great  Britain :  more- 

*  over  his  most  Christian  majesty  cedes  and 
'  (guaranties  to  his  aaid  Britannic  majesty  in 

*  full  right  Canada,  with  all  its  dependancies, 

*  as  well  as  the  island  of  Cape  Breton,  and  all 

*  the  other  islands  and  coasts  in  the  gulph  and 

*  river  of  St.  Lawrence.    And  in  general  every 

*  thing  that  depends  oa  tlie  said  countries, 

*  lands,  islands  and  coasts,  with  the  sovereignty, 

*  property,  possession,  and  all  rights  acquired 

*  by  treaty  or   otherwise,    which   the    most 

*  Christian  king  and  the  crown  of  France  have 

*  bad  until  now  over  the  said  countries,  islands, 

*  lands,  places,  coasts,  mnd  their  inhabitants : 

*  90  that  the  most  Christian  king  cedes  and 
«  makes  over  the  whole  to  the  said  king  and  to 

*  the  crown  of  Great  Britain  ;  and  that  in  the 

*  most  ample  manner  and  tbnu  without  re- 

*  striction,  and  without  any-  liberty  to  depart 

*  from  the  said  cession  and  guaranty  under 

*  any  pretence,  or  to  disturb  Great  Britain  in 

<  the  possessions  above  mentioned. — His  Bri- 

*  tannic  majesty  on  his  side  agrees  to  grant  the 

<  liberty  of  the  Catholic  religion  to  the  inhabi- 

*  tants  of  Canada :  he  will  consequently  give 

<  the  most  precise^  and  effectual  orders,  that  his 

*  new  Itoman  Catholic  subjects  may  profess  the 

<  worship  of  their  religion,  according  to  the 

*  rights  of  the  Romish  church,  so  far  as  the 

*  laws  of  Great  Britain  can  permit — His  Bri- 

*  tannic  majesty  further  agrees  that  the  French 

*  inhabitants  or  others  who  had  been  subjects 

*  of  the  most  Christian  king  in  Canada,  may 

*  retire  with  all  safety  and  freedom  wherever 

*  they  shall  think  proper,  and  may  sell  their 

*  estates  provided  it  be  to  subjects  of  his  Bri- 

*  tannic  majesty,  and  bring  away  their  effects 

*  as  well  as  their  persons  without  being  re- 

<  strained  in  their  emigration  under  any  pre- 

*  tence,  except  that  of  debts  or  criminal* |>rose- 

*  cations.    The  term  limited  for  this  eroigra- 

*  tion,  shall  be  fixed  to  the  space  of  eighteen 

*  months  to  be  computed  from  the  day  of  the 

<  exchange  of  the  ratifications  of  the  present 

*  treaty.' 

*<  *  Article  the  ninth — ^The  most  Cbristain 

*  king  cedes  and  guaranties  to  his  Britannic 

*  majesty  in  full  right  the  islands  of  Grenada, 

*  with  ihe  same  stipulations  in  favour  of  the  in- 
«  habitants  of  this  colony,  inserted  in  tlie  4th 

*  article  for  those  of  Canada.    And  the  parti- 

*  tion  of  the  islands  called  Neutral  is  agreed 

*  and  fixed ;  ao  that  those  of  St.  Viaoent,  Do- 

*  minica,  and  Tobago,  shall  remain  in  fnll  right 
« to  Great  Britain,  and  that  of  St..  Lncia  shall 


'  be  deiirercd  to  Fr«Mtv  lo 


'  tracting  parties  guaranty  the   partition   so 

*  stipulated.' 

**  And  the  jurors  aforesaid  upon  their  oaths 
aforesaid  further  saVf  that  his  majesty,  by  his 
royal  proclamation  bearing  date  at  Westmin- 
ster the  7th  day  of  Octitber,  1763,  amongst 
other  things  declared  as  follows,  *  And  whereas 

*  it  will  greatly  contribute  to  the  speedy  settling 
*oor  said  new  governments  that  our  loving 

*  subjects  should  be  informed  of  our  paternal 

<  care  for  the  security  of  the  liberties  and  pro- 
'  nerties  of  those  who  are  and  shall  become  in- 

*  habitants  thereof;     we  have  thouifht  fit  t(^ 

*  publish  and  declare,  by  this  our  proclamation, 

*  that  we  have,  in  the  letters  patent  under  onr 

*  great  seal  of  Great  Britain,  by  which  the  said 

<  governments  are  constituted,  given  express 

*  power  and  direction  to  our  governors  of  our 
'  said  colonies  respectively,  that,  so  soon  as  the 

*  state  and  circumstances  of  the  said  colonies 

*  will  admit  thereof,  they  shall,  with  the  advice 

*  and  consent  of  the  members  of  our  council, 
( summon  and  call  general  assemblies  within 

*  the  said  governments  respectively,  in  such 

*  manner  and  form  as  is  used  and  directed  in 

*  those  colonies  and  provinces  in  America, 
(  which  are  under  onr  immediate  goveniment. 

*  — And  we  have  also  given  power  to  the  said 

*  governors,  with  the  consent  of  our  said  coan- 

*  cils  and  the  representatives  of  the  people,  so 

*  to  be  summone<l  as  aforesaid,  to  make  coo- 

*  stitutions  and  ordain  laws,  statutes  and  or- 

*  dinances,  for  the  public  welfare  and  good  go- 

<  vemment  of  our  said  colonies  and  of  the  peo- 
«  pie  aud  inhabitants  thereof,  as  near  as'  may 
«  be,  agreeable  to  the  laws  of  England,  and 

<  under  such  regulations  and  restrictions  as  are 

*  used  in  other  colonies.    And  in  the  mean  time 

*  and  until  such  assemblies  can  be  called  as 

*  aforesaid,  all  persons  inhabiting  in,  or  resort- 

*  ing  to  our  said  colonies,  may  confide  in  our 

*  royal  protection  for  the  enjoyment  of  the  be^ 

*  nefit  of  the  laws  of  our  realm  of  England : 

*  for  which  purpose  we  have  given  power  under 

*  our  great  seal  to  the  governors  of  our  said  co- 

*  lonies  respectively,  to  erect  and  constitute, 

*  with  the  advice  of  our  said  councils  respec- 
'  tively,  courts  of  judicature  and  public  justice 

*  withm  our  said  colonies,  for  the  hearing  and 
'  determining  all  causes  as  well  criminal  as  civil 
'  according  to  law  and  equity,  and  as  near  as 
'  mav  be  agreeable  to  tlie  laws  of  England ; 

*  witli  liberty  to  all  persons  who  may  think 

*  themselves  aggrieved  by  the  sentences  of  such 

*  courts  in  all  civil  causes  to  appeal,  under  tbo 

*  usual  limitations  and  restrictions,  to  us  in  our 
'  privy  council.' 

**  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  further  say — ^That  bis  majesty  by  his 
royal  proclamation  bearing  date  at  Westmin- 
ster, the  <i6th  day  of  Alarch  1764,  amongat 
other   things   did    also    declare    as   folkiws, 

*  Whereas  we  have  taken  into  oar  considers^ 
'  tion  the  great  benefit  that  will  arise  t6  th« 
'  oooiBMivo  of  oar  kingdoms  and  the  interasl 

*  of  o«r  snbfcctt,  froon  the  speedy  aectlemeol 

*  §f  Ihi  isliMs  of  QiiMdai  Iha  flimadimi. 


Campbell  v.  Hall. 

•  Dnaaiaki.  81.  Vincent  aiid  Tobago,  we  in 

ititrefore  ihink   fit.   wilti   ih<?  aitrire  of  riur 

lairy  eauDCJI,  to  iuue  thi«  our  roytX  procln- 

ni^tiua.  In  jinlillBh  aud  declare  to  our  loring 

;.  i  1     ttiat  we  Ijate  wiib  ihr  «dticeor  our 

'  I  e  iiuncil, given  tlienecessBrv  powers 

I    •  riuHs  foran  immediate  tai\ty,»aA 

i  ::,  iiiiu  projier  piriilin  and  diitricti,  of 

'  "'li  of   (he  said  iilanda  aa  liate  not  biiherto 

'««■  noaurrFved  and  diiided  ;  and  for  laying 

nil  Mich  laods  in  the  laid  islands  as  are  in  our 

I'vwer  to  diapose  of,  intn  allotinente  for  pUn- 

tiuoos  of  dilffrent  hixe  und  extent,  according 

'  u  tlw  nature  of  the  lanil  «tiall  be  mnre  or  Iras 

'  adapted  U>  tlie  growth  of  BU|tnr,  culfpe,  cocoa, 

'  oHtoa,   or  oilier  articles  uf  bentAcisl  ciil- 

'  uire ;  TCEertint;  to  as,  our  lieirs  and  BucceaaorB, 

'  iLcti  pans  iif  tlie  said  inlands  as  aliall  be  ne- 

'  'nnry  for  erecting  fortiRcatioos  ilierenn,  and 

<r>r  all   DtliCf  miliiBry  purposes;  for  glebes 

' 'ur  miiiiiteri,  aJlutmeats  tor  eg lionl- masters, 

'ftr  wood-lands,    liigh'rnails,   and   all  other 

^^■^Cn  pnrpnaes;     and   aUo  resemng  such 

^^^■rfi  in  onr  islanila  of    Dominica  and   St. 

^^^^Mitlt  aa  at   llie   lime  of   the  surrendtfr 

^^^■n  rad  atjll  are   in  the  posaession  of  the 

^^^KcmIi,  inbsbitanti   of    ilie    aaid    islands  ; 

^^^■U  hnda  it  is  our  will  and  pleasure  should 

^^^V  cniil«il  to  such  iif  Ihe  asiil  inhuhiiants  as 

■      I^ImII  be  inclined  lo  ucuepl  the  asmc  upon 

'  Wm  for  terms  absohitu,  or  for  renewable 

-rma   npon    certain   cuiidilinns,  and    under 

ii  oprr  resirictiun*.    And  we  do  herehy  farther 

,'ubluih  and  declare,  thai  the  allolmenta  for 

,  iintatioiia  In  cur  inlands  of   Grenada,  Ihe 

' .  madines,  Tobagu  and  St  VinceDl,  shall 

-nlato  IVnm  uoe  himdred  to  three  hundred 

.-res,  with  unine  lew  nllolments  ioeach  island 

.'  fire  buaitred  acres;    ami  that  the  allot- 

fota  in  our  inland  af  Dominica,  whiab  is 

■Tuvamied  to  be  nni  au  well  adapted  lo  ihe 

luiuralion  of   sugar,  anri   which    from  its 

'  Ml— linn  require*  in  policy  to  be  well  peopled 

I'  rtlhtrbilc  lahabitanU,  iliili  lie  in  eeneral  from 
'61^  lomnhandrMl acres.  Thai  each  purchaser 
*tf  lawla  which  hare  been  cleared  and  im- 
'  anitA.  (ball  witliin  ibe  apace  of  three  monlhs 
il  If  of  ihegrani  seltleand  constantly 
<>  liie  Int  iKirchueil  one  white  man 
'lite  womKn,  for  every  hundred 
I  >tn(d  in  the  salU  lot,  and  in  default 
'  itwmf  tball  be  suhject  lo  the  payment  of 
'ML  prr  annnm  f'lr  e\eTy  white  woman,  and 
'  tOi,  |ier  aoaum  fur  vvery  while  idso,  that 
*iWI  iHt  wanliotc  to  complete  the  number. 
'Thtk  Hi*  putchaaerof  itni'lpsrad  lands  shall 
'dHrsoid  culiisali!  iioe  acre  in  etery  twenty 
■laMnh  year,  until  Imif  the  laud  so  purchased 
■  AaB  b*  cImtviI,  and  in  default  thereof  ihaM 
>  pjr  il.  p«r  aBDum  for  erery  acre  not  cleared 
<  patB«aut  lo  Budi  eonditjon.  And  such  pur. 
'  ^tmtt  aliall  alao  1m  iiiili|{ed  lo  settle  and  on- 
'MMljr  ll*^  upon  Uie  lot  so  purchated  on« 

ixiulrBl  aerca  aa  the  same  thall  be  cleareil. 
I  '111  auli  puicb*>«r,  bcaidea  the  purchase 
tj,  abkll  Im  8ub|CGl  to  ibe  payoicut  of  an 


[546 


A.  D.  1774. 
'  anaual  quit-rent  lo  us.our  heirs  ai 
'  of  sixpence  per  acre,  imder  the  penally  of  61. 
'  per  kcre  upnn  non-payment  thrreuf.  Such 
'  quit-renU  iu  Ihe  esse  of  Ihe  purchase  of  ulear- 

■  ed  lauds  tn  commence  from  the  dale  of  the 
'  nTBnt.  anil  the  fimi  |myment  to  be  made  at  the 
'  expiration  of  the  first  year  ;  and  in  caseof  ths 
■purchase  of  the  uncfeared  lands,  auch  qait- 
'  rents  lo  commence  at  the  expiration  of  iweUe- 
'  months  from  ihe  lime  each  acre  is  cleared. 

*  That  in  case  of  failure  in  the  payment  of  Ibe 
'  pa  re  base  money  in  Ihe  manner  above  directed, 
'  the   purchaser  shall  forfeit  all   right  lo  Ibe 

*  lands  purchased.' 

>■  And  Ihe  jurors  aforesaid,  upon  their  oaths 
afuresaid,  further  say,  that  his  majesty  by  bis  let- 
ters patent,  under  his  writ  nf  prity  seal  bearing 
dale, at  Westminster,  the 9th  day  »f  April  1764, 
appointed  Robert  Meicille,  esq.  vapiaio  general 
and  gorerlior  in  chief  in  and  oier  the  wlands  of 
Grenada,  the  Grenadines,  Dominica,  Si.  Vio- 
ceal,  and  Tobago,  in  America ;  and  ofall  other 
islands  and  territories  adjacent  thereto  :  which 
said  letters  pnleot  are  as  follows. — '  Georga 
'  the  third  by  Ihc  i;race  of  God,  of  Great  Bri- 

>  lain,  France  and  Ireland,  king,  delender  of 
'  the  faitb,  &C.  To  our  Irusiy  and  well  be- 
'  lored  Koberl  MelTille,  esq.  greeting ;  whereas 
'  we  did  by  our  letters  patent  under  our  ^reat 
'  seal  of  Great  Britaio,  bearing  dste  al  West- 
'  mioBler,  Ibe  4lh  day  of  April,  in  the  first  jear 
'ofunr  reign,  constitute  and  appoint  Charlea 

*  Pinfold,  esq.  captain- genera  I,  and  governor  in 
'  chief  in  and  over  our  islnnds  of  Barbadoes, 

*  St.  Lucia,  Dominii.'a, Si.  Vincent, Tobagn,  and 
'  the  real  of  onr  islands,  colonies  and  planta- 

■  tioniin  America,  commonly  called  or  known 
'  by  the  naoie  of  our  Carnbee  islands  lying 
'  andbeingtoibe  windward  of  Guadaloupe,  and 

*  which  then  were  or  after  should  be  under  our 

<  sulgectiuD  and  ifovernmetil,  during  our  will 
'  and  [ileasure,  us  by  the  said  recited  letters  pa- 
'  lent,  relation  being  ihereunio  had,  may  mora 

■  fully  and  al  targe  appear:  now  know  you  that 
'  wehaveretoktuland  determined,  and  by  these 

*  present*  do  revoke  and  di'termine,  tucb  part 

*  and  so  much  of  the  said  recited  leiters  patent, 
'  and  every  clause,  article  and  thin^,  (bereia 
'  cnnluined,  as  relates  Iu,  or  muotiniia,  Ibe 
'  island*  of  St.  Lucia,  Dominica,  St.  Vmeeut, 

■  and  Tobago.     And   further  know  you,  ihat 

>  we,  rrposini;  especial  trust  and  counilence  in 

*  Ihe  prudence,  courage  and  loyally,  of  yoa 

<  Ihe  said  itnbert  Melvdie.ofour  ea)iecialgrace. 
'  certain  knoitWge,   suil  mere  molion,  have 

■  tlinught  fit  in  cuiislituW  and  uppoinl,  and  by 

■  Iheae  presenls  do  cnnstitutr  and  appoint,  ynu 

■  Ihe  Baid  Hubert  Melville  lo  be  uur  capUio- 
'  general  and  governor  in  ubief.  in  and  over  one 
'  islands  of  Grenada,  the  Ureaadines,  Uomi- 

■  nica.  Si,  Vincent,  and  Tobago,  in  America, 
'  and  of  all  ulher  islands  and  territories  adja- 

■  cent  thereto,  and  which  now  are,  oi  beretn- 
'lore  have  been,  tle|ieadcnt  thereupon.  And 
'  nc  do  hereby  require  and  command  you  to 

■  do  and  execute  all  ihings  iu  due  msimcr,  Ibat 
'  shall  belong  to  your  taid  coDUOaDd,  and  tha 


247] 


15  GEORGE  III.         The  Case  ^the  Idand  qfGrenadi 


trust  we  have  reposed  iu  you  according  to  the 
several  powers  and  directions  granted  or  ap- 
pointed you  by  tUis  present  coDiniissiou,  and 
the    instruetious   and    authorities    herewith 
giren  to  you,  or  by  suob  further  powers,  in- 
8tru«-tions  and  authorities,  as  shall  at  any 
time  hereafter  l»e  granted  or  appointed  you, 
under  our  signet  and  sign  manual,  or  by  our 
order  in  our  pri?y  council,  and  according  to 
such  reasonable  laws  and  statutes  as  Aail 
hprealter  lie  made  and  agreed  upon  by  you, 
with  the  acWice  and  consent  ot  the  council 
and  assembly  of  ihe  islands  and  plantations 
under  yuur  gofernnnent,  in  such  manuer  and 
form  as  is  hereinafter  expressed.    And  our 
will  and  pleasure  is  that  vou  the  said  Robert 
Mflville,  do,  alUr  the  publication  of  these  oar 
letters  patent,  and  after  the  appointment  of 
our  council  lor  our  sa-d  islands,  m  such  man> 
ner  and  form  as  is  prescribed  in  the  instruc- 
tions which  you  will  herewith  receive,  iu  the 
first  place,  take  the  oaths  appointed  to  be 
taken  by  an  Act  passed  in  ihe  first  year  of  the 
reign  of  king  George  the  first,  entitled.  An 
Act  lor  the  further  security  of  his  majesty's 
person  and  government  and  the  succession 
of  the  crown  in  the  heirs  of  the  late  princess 
feiopbia,  being  Protestants;    and  for  extin- 
guishing the  hopes  of  the  pretended  prince  of 
Wales  and  his  open  and  secret  abettors :  as 
alsu  that  you  make  and  subscribe  the  declara- 
tion mentioned  in  an  act  of  parliament  made 
in  the  35tb  year  of  the  reign  of  king  Charles 
the  second,  intitled  An  Act  for  preventing 
dangers  which  may  happen  Ifrom  Fopish  re- 
cusants.— And  likewise  that  you    take  tlie 
oath  usually  taken  by  governors  iu  the  other 
colonies  for  the  due  execution  of  the  office 
and  trust  of  our  captain-general  and  governor 
in  chief  in  and  over  our  said  islanila,  and  for 
the  due  and  impartial  administration  of  jus- 
tice.— And  farther  that  you  take  the  oath  re- 
quired to  be  taken  by  tiie  governors  of  the  plan- 
tations to  do  their  utmost, that  the  several  laws 
relating  to  trade  and  the  plantations  be  duly 
observed ;    which  said  oaths  and  declaration 
our  council  of  our  said  islands,  or  any  three 
of  the  members  thereof,  have  hereby  full 
power  and  authority,  and  are  required  to  ten- 
der and  administer  to  you:    and  in  your  ab- 
sence to  our  lieutenant  governor  of  the  said 
islands,  and  to  our  lieutenant-governors  of 
eachof  our  said  islands  respectively,  the  said 
oaths  mentioned  in  the  said  act  entitled,  An 
Act  for  the  further  security  of  his  majesty's 
person  and  government,  and  the  succession  of 
the  crown  in  the  heirs  of  the  late  princess 
Hophia,  being  Protestants,  and  for  extinguish- 
ing the  hopes  of  the  pretended  prince  of 
Wales,  and  his  open  and  secret  abettors:    as 
also  cause  them  to  make  and  subscribe  the 
aforesaid  declaration,  and  to  administer  unto 
them  the  usual  oaths  for  the  doe-  execution 
of  I  heir  places  and  trusts.— Aad  ws  do  fiirtiier 
give  and  grant  unto  vou  the  and  RolNKt  Mel- 
ville, full  power  aaa  tutfaorilgr  fi 
time,  and  il  wy  liat  kBMtAi^ 


[S4S 

'  or  by  any  other  to  be  authorized  by  yea  in 

<  this  behalf,  to  administer  and  give  ibm  oaths 

*  mentioned  in  tht  said  act,  for  the  finrtbar  se* 

*  curity  of  his  m^esty 's  iierson  awl  goveniBieat, 

*  and  the  succession  of  the  crown  m  the  keirs 

*  of  the  late  princess  Sophia,  being  Protestants, 
^  and  for  extinguishing  the  hopes  of  Ihe  pre* 

*  tended  prince  of  Wales,  aod  bis  open  aad 
^  secret  abettors,  to  all  and  every  such  persoa 

*  and  persons  as  you  sfaaU  think  it,  u  be  riiaN 
'  at  anv  time  or  times  pass  into  any  of  our  said 
'  islands,  or  shall  be  resident  or  abiding  there. 

**  *  And  we  do  hereby  authorize  and  ioipower 

*  you  to  keep  and  use  the  public  seal,  which 

*  will  be  herewith  delivered  to  you,  or  ahaH 

*  hereafter  be  sent  to  you,  for  sesling  aU  things 

*  whatsoever  that  shall  p4ss  the  great  seal  of 

*  our  said  island. 

*'  *  And  we  do  hereby  give  and  grant  ante 

*  you  the  said  Robert  nelville,  full  power  and 

*  authority,  with  the  advice  and  constant  of  our 

*  said  council  to  be  apiminted  as  aforesaid,  as 

*  soon  as  the  situation  and  circumstances  of  our 
'  islands  under  your  government  will  admit 

*  thereof,  aud>  when  and  as  tdien  as  need  sliaM 

*  require,  to  summon  and  call  general  aawm- 

*  blies  of  the  freeboltiers  and  planters  jointly  or 

<  severally  within  anv  of  the  islapds  under  your 

*  government,  in  such  manuer  as  you  in  your 

*  discretion  shall  judge  most  proper,  or  ac- 
'  cording  to  such  further  powers,  instructions 

*  or  autliorities,  as  shall  be  at  any  tima  here* 

*  after  granted  or  appointed  you   under  our 

*  signet  and  sign  manual,  or  by  our  order  ia 

<  our  privy  council. 

'<  *  And  our  will  and  pleasure  is,  that  the  per- 

*  sons  thereupon  duly  elected  by  the  aiaior 
'  part  of  tlie  freeholders  of  the  respective  pa* 

*  rishes  or  precincts,  and  so  returned,  shall  be- 

*  fore  their  sitting  uke  the  oaths  mentioned  in 
'  the  said  act  entitled.  An  Act  for  the  further 
'  security  of  his  majesty's  person  and  govem- 
'  ment,  and  the  succession  of  the  crown  in  tJie 

*  heirs  of  the  late  princess  ijuphia,  being  Pro- 
'  testants,  and  for  eztinGfuishing  the  hopes  of  the 
'  pretended  prince  of  Wales,  and  his  open  and 
'  secret  abettors :  as  also  make  and  subscribe  the 
'  aforementioned  declaration,  which  oatha  aad 
'  declaration  you  sliall  commisskinate  fit  persons 

*  under  the  public  seal  of  those  our  islands  to 

*  tender  and  administer  unto  them :    and  uutU 

*  the  same  shall  be  so  taken  and  subscribedi  ne 
'  person  shall  be  capable  of  sitting,  tliougli 

*  elected.    And  we  do  hereby  declare,  that  ue 

*  persons  so  elected  aod  qualined  shall  be  called 
'  and  deemed  the  assembly  of  that  ishind  within 
'  which  thev  shall  he  chosen,  or  tlie  assembly 
'  ol'  our  said  islands  in  general.    And  thai  you 

*  the  said  Robert  Melville,  by  and  with  the 

*  advice  and  consent  of  our  said  council  aod 
'  assembly  or  assemblies,  or  the  major  perl  of 
'  them,  snail  have  full  power  and  auUiority.  to 

*  makoycoostitulet  and  ordain  laws,  statntea,  aod 

*  ordinaocca,  for  the  puhlie  peace,  wolfamp  ondl 

*  gnodgoostOBientot  oog  said  islands,  jmstf 


•ee 


•adoTiho 


Campbea  v 


Mali, 


K  MnI  fa  tlie  benffit  of 

Wbicb  nid  lini,  sulotea, 
II  to  be  repti|{>>Biii>  I'ul, 
■  n*])  be,  Ki^reealile  lo  ibr  bws  and 
■  •rihtanur  kingdato  al*Ore«t  Britaia. 
I]  B>l  sudi  lawa,  BlHlittH,  arul  ur- 
wltal  auiire  ar  durttioo  toeicr, 
«  willun  tbm  muDtha  dt  luuDiir  arier  ibe 
'■iiBiir  thereol',  tutitiniUed  lo  us,  uuier  our 
'mti  al  mar  »s'ui  iaiauila.  I'urour  approbalinii  or 
'  I  Mllaw ce  ol  Uie  (ame ;  as  ehu  ilu|ilivBlca 
'maaftty  lb«  next  convcj'ancF. 

■■  ■  Au<l  ia  ras«  any  or  nil  iiC  ihe  sajil  liwa, 
'Mtoles,  auai  orilinauun,  ni>i  U>rure  cnnfirineii 
'kf  M,  shall  at  ■oj'  lime  b«  diva  I  ki  wed,  and 
'M  aypnH K«t.  auU  »o  signifinl  by  ua,  uur 
'ban  utd  succwion,  unikr  ibeir  siifuet  or 
'  mga  tauiual,  M  by  nrJer  of  niir  nr  tlirii'  iiriij' 
■oaocil,  auto  >nu  tkwsaul  Kubtrt  Alrlvillif,  or 
'■tbceuniiMiiiier  ID  cbief  of  ihe  aaiJ  ialandi 

*  !■  ibr  Uiot  beiii^;,  ibcB  lucb  and  so  lUBMy  of 
**e  B*ii)  kws,  siBtuiei,  mnI  oribnancefl,  as 
*«WI  bar  au  iliHaltowed  bimI  nM  apiirovpd,  ihall 
•fc^  ihmcelMlh  cease,  deterutiiie,  and  be- 
*Maw  Blirily  toiJ  and  have  nu  eArct,  anv 
'^mt  ■"  tb«  osolrary  ihcreal'Doiwiibstiitiiliii|r. 

**  *  itnil  It!  Ihe  end  Ihat  nolhinn  luiy  be 
'  ■wrt  in  doue  hy  our  said  council  or  Rssem- 
*liaa  ID  the  prrjiubce  of  ui,  our  heira  and  «ac 
'  n«ui».  we  mil  uikI  onbin  thpl  you.  the  aald 
'  H-Wn  Mrltdre,  bhall  dure  and  enjoy  a  nega- 

*  tn<  mioe  ia  Ibe  inakuif  aud  (laBsinK  ail  laws, 
'  ■*4Bl'«,  and  ordtuaBL-os,  as  aroreKai<l,  And 
'ihal«oij  slioJI  and  may  likewite,  from  litneto 
'Ud*.  ma  yon  >hall  jud|[e  necessary,  adjourn, 
'  rwijue  or  disMtlve,  nil  general  BMenlilie*  as 
'Mmaid.' 

■  Anil   <hc  jnroni  aforeaard,  on  llteir  oallts 

I^hhI,  briber  suy,   Chat  hia  exoelleocy  Itn- 

I  HeKille,  esq.  arriied  in  Grenada  on  tlie 

k«(  Deevinber,  1764,  and  in  conwquence  of 

I  leittra  paient,  took  upon  liini 

Igavetuolenl  of  the  aanie,  and  Ibe  utUer 

'  I  Ihewia  named.      And  that.  In  conee- 

ntioned  lelt«ri  palenl.  a 

J  of  ill  e  governor,  coudcII,  andasaembly 

»  Md  itltnd  of  Grenada  was  beld  there  in 

■■•iMtor  «ad  of  ibe  year  1765. 

"JkmA  lllBl  hit  majeily,  by  his  letters  patent 
vAiv  ibe  i^rest  seal  (rf  Great  Britain,  branny 
*«  at  WeMminsler  Ihe  SOth  day  of  July,  in 
ibe  rnoMh  year  of  bin  reign,  and  m  the  year  of 


I  offr 


lalf 

a  uud  after  Ibe  \ 


fB  oeot.  in  »pvuie  abouli 

exb  <tay  of  MeiHemtiet  then 

Mieil  aail  paiil  lo  bis  heirs  a 

mi  0)100  ajt  dead  uoinmodilies  of  Ibe  yrowlb 

M^pniduoa  of  the  said  islawl  of  Grenada  ilial 

AaaU  be  «b[>ped  •>«  fi-om  the  same,  in  lieu 

rfMciu**nnand   iRi|inet  thiiies  lo  ibat  lime 

htoaaidaatnf  the  said  island,  under  ibe  aulho- 
ttj  mf  ki*  moil  Clirisiiao  majesty.  Wbtch 
■M  Micra  paiMit  are  in  the  words  following: 
third,  by  Ihe  ursce  of  God,  of 
Prance,  xid  Irelaud,  kiug,  <le- 


A.  D.  177*.  [650 

ftiidf  r  of  tbi  failb,  Scu.  To  all  lo  whom  these 
prexeittB  abtll  cMne,  greeiiiit;:  wltereas  a 
oerLBin  imyost  or  cuslum  nf  fiiur  |xiundi 
and  a  balf  in  aprcic  fur  efery  hundred  weiifbl 
of  the  C'lmiuodities  of  t1>e  growth  and  produce 
of  Ihe  ial^Dd  of  Borbadoes,  and  of  ihe  1^. 
ward  Carribbee  islauda  in  America,  shipped 
off  frsm  the  sane,  or  any  of  ibt^iii,  is  paid 
aud  (isyahle  to  as,  our  heira  and  auccsssvra  ; 
and  wltereaa  the  islaud  of  Grenada  was  coti< 
quered  by  us  during  ihe  late  war,  and  bas 
been  ceded  and  secured  to  ua  by  the  lair  ireaiy 
ut  peace  ;  and  whereas  il  is  reaiouable  and 
expniieoi,  and  of  ioiportaoce  lo  our  oiber 
sugar  Ulanda.  that  ilie  lilteduty  sliauld  lake 
plaice  in  nur  aaid  islaad  of  Orenaila ;  we  have 
'  llHiught  (il,  and  our  royal  will  and  pleasure  ia, 
and  we  do  berahy,  by  Tirlna  uf  our  prrroga- 
'  tiie  royal,  order,  direct  aud  appoint,  lliat  an 
'  impost  or  cuatoni  of  fuar  and  a  half  per 
■'  cent,  in  specie  ahull,  from  ftiid  after  ibe  U(Kb 
'  day  of  ijepleniber  oetl  eiiauin)j:  Ibe  date  of 
ibese  preaeals,  he  raised  and  paid  lo  in.  our 
'heirs  and  suceeasnrs,  hr  and  upon  all  dead 

>  coinmnlilies  of  Ibe  ti">"l'<  or  pro'loce  of  nur 
'  naid  island  of  Greonda  tliat  aball  he  abipped 
'  off  from  the  auae ;  in  lieu  of  all  cuatuuia  aod 

>  impost  duties  hiiberlo  L-ulleoted  upon  ^rowlB 
'  imported  and  exported  lolo  and  oiil  uf  the  s«d 
'  ixlaad  under  the  aulUoriiy  of  bis  inuA  Chris- 

>  lian  majesty :  and  that  llie  same  shall  be  col- 

>  lected  paid,  and  leviiMl  in  suck  manner  and 
'  by  such  mcana,  and  under  audi  jMnaliics  and 

■  furleiiures  as  ibe  said  impost  ur  custom  of 
'  tour  and  a  balf  per  cent,  is,  aud  may  now  be 
'  collected,  paid,  atul  li'vied  iu  oar  said  island 
'  of  Barkidoes,  and  our  Mid  Loeward  islands. 

"  '  Aud  we  ilo  hereby  retjuire  and  command 
'  the  prenenl  governor  or  commander  in  chief, 
'  and  Ihe  governor  or  cuminnnder  in  chief  tor 
'  the  lime  bvinic,  and  Llie  oflicei'S  of  our  ciia- 
'  luiiia  in  ibc  aaid  iaianil  "f  Grenaila,  now  and 

<  horealler.  for  the  tinie  being,  anil  all  ulliera 

*  whom  it  tnav  cnncern,  Ibat  they  du  respec- 
'  lively  lake  care  lo  collect,  levy,  and  Iu  reoeivn 
'  the  said  impost  or  ousiom,  according  in  our 
•royal  will  and   pk-astire,  bigniQed  by  these 

"  ■  And  whereas  a  poll-tax  was  levied  and 
'  pnid  by  Ihe  iuhahitanla  nf  oik  si^d  island  of 

■  Gmiiida  whilst  it  was  UQ'ier  subjection  tn  bis 
'  most  Christian  iRq>>siy,  il  is  onr  n>yal  will 

■  and  pleasure  thai  sucb  poll-lax  as  wau  levied, 

•  collei'tnl  and  paid  by  the  inhabitants  of  the 

•  said  island  whilst  il  was  under  subjeclion  to 
'  his  must  Chrtsiian  majesty, shall  becunlinued 
'  lliereiB  duriag  our  Tiiyal  will  and  pleasure; 

■  and  Ibat  Ibe  same  shall  be  cuUeuied,  levieil, 

>  anil  [laid  to  uis  our  heirs  ami  sucvcssiirs,  at 
'  such  limi-Kand  in  such  manlier,  and  liy  such 
'  ways  anil  means,  uml  under  suoli   |H;oBlti«s 

■  and  fartbiiures,  and  upou  such  terms,  anit 
'  with  aoeh  privilevts  and  esemptionB  a':  Ihe 

*  same  wa»  colleeled,  levied,  nod  paid  whilst  Ike 

<  asid  islBHl  was  under  such  aii^Miun  to  bis 
'  nioslCbristiau  majealy,  inasmuch  as  itresaiHS 
'  ar«D»t  cotttrary  to  the  laws  of  Great  Bntatn. 


S51] 


15  GEORGE  IIL  The  Case  of  the  Island  of  Grenada^         [S52 


« *  And  that  the  aooount  and  namber  of  the 

*  inhabitants  and  slaves  therein  shall  be,  from 

*  time  to  time,  kept  and  delivered  iu  by  such 

*  person  and  persons,  and  at  such  time  and 

*  times,  and  ander  such  regulations,  sanctions, 
'  penalties  and  forfeitures  respectively,  as  and 

*  under  which  the  same  were  taken,  kept  and 
'  delivered  in  during^  the  time  the  said  island 

*  was  subject  to  his  most  Chrisiian  majesty,  as 

*  aforesaid,  in  as  much  as  the  same  are  not  con- 

*  trary  to  the  laws  of  Great  Britain. 

**  *  And  we  do  hereby  require  and  command 

*  the  present  g^overnor  or  commander  in  chief, 

*  for  the  time  beiniif,  of  our  said  island  of 

*  Grenada,  and  the  several  officers  of  our  re- 

*  venue,  now,  and  for  the  time  being,  and  all 

*  others  whom  it  may  concern,  that  they  do 

*  respectively  take  care  to  collect,  levy,  and  re- 

*  caj||e  the  money  arisinip  and  to  arise  by  the 

*  said  tax,  and  to  pay  and  account  for  the  same 

*  to  the  receiver  general  and  collector  of  our 

*  casual  revenue  in  our  said  island,  ^br  the  time 

*  being,  according  to  our  royal  will  and  plea- 

*  sure  siu^ified  bv  these  presents.*' 

**  Which  said  letters  patent  were  afler wards 
duly  registered  in  the  said  island,  and  were 

Sublicly  announced  by  his  excellency  Robert 
[elvilie,  esq.  in  the  month  of  Junuary  1766, 
immediately  succeeding  his  arrival  in  the  said 
island  of  Grenada. 

"  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  farther  say,  that  the  said  duty,  of 
four  and  a  half  per  cent,  before  the  making  of 
the  said  last  mentioned  letters  patent,  was  and 
yet  is  paid  in  the  island  of  BarMdoes,  and  the 
Leeward  Caribbee  islands,  in  pursuance  or  by 
virtue  of  acts  of  assembly  passed  in  the  same 
islands  hereinaAer  set  forth. 

*'  And  the  jurors  aforesaid,  upon  their  oaths 
aforesaid,  farther  say,  that  by  an  act  of  as- 
sembly of  the  island  of  Barbadoes,  in  the  West- 
Jndies,  passed  in  the  said  island  on  the  13th 
day  of  September,  1663,  intitied,  '  An  act  for 

*  settling  an  impost  on  the  commodities  of  the 

*  growth  of  that  island,'  it  is  amongst  other 
things  recited  and  enacted  as  follows : 

'  Whereas  our  late  sovereign  lord  Charles 

*  the  first,  of  blessed  memory,  did,  by  his  let- 

<  ters  patent  under  the  great  seal  of  England, 

*  grant  and  convey  unto  James,  earl  of  Car- 
« lisle,  and  his  heirs  for  ever,  the  propriety  of 
'  this  island  of  Barbadoes;  and  his  sacred  ma- 
•jesty  that  now  is   hating  by  purchase  in- 

<  vested  himself  in  all  the  rights  or  the  said  earl 

*  of  Carlisle,  and  in  all  other  rights  which  any 

*  other  person  mayclaim  from  that  patent.or  any 

*  other,  and  thereby  more  immediately  and  par- 

*  ticularly  hath  [having]  taken  this  island  unto 
'  his  royal  protection :  and  his  most  excellent 

*  majesty  having,  by  letters  patent  under  the 

*  great  tteal  of  England,  bearing  date  the  13th  of 
'  June,  in  the  I5th  year  of  his  reign,  appointed 

*  his  excellency  Francis,  lord  Willoughby  of 

*  Parham,  captain  general  a!id  chief  governor 
'  of  Barbiidoes,  and  all  the  Carribbee  isiandb, 

*  with  full  power  and  authority  to  grant,  odd- 
'  firm,  and  assure  to  the  iubabitaDlaMlbe 


'  and  their  heirs  for  ever,  all  lands,  tenements, 

*  and  hereditaments,  under  his  maieaty's  great 

*  seal  appointed  for  Barbadoes  and  the  rest  of 
'  the  Carribbee  islands,  as,  relation  being  there- 

*  unto  had,  may  and  doth  more  at  large  appear. 

**  *  And  whereas,  by  virtue  of  the  said  earl  of 

<  Carlisle's  patent,  divers  governors  and  agents 
'  have  been  sent  over  hither  with  antbority  to 

*  lay  out,  set,  grant,  or  convey  in  parcels  the 

*  land  within  this  island,  to  such  peraons  as 

*  they  should  think  fit,  which  was  by  them,  in 

*  their  respective  times,  as  much  as  in  ibem 
'  lay,  accordingly  performed.     And  whereas 

*  many  have  lost  their  grants,  warrants,  ajid 
'  other  evidences  for  the  said  lands ;  and  others, 
*•  by  reason  of  the  ignorance  of  thoae  timet, 

*  want  sufficient  and  legal  words  to  create  in- 

*  heritances  tothem  and  Uieir  heirs;  and  others 

*  that  never  recorded  their  grants  and  war- 
'  rants ;  and  others  that  can  nmke  no  proof  of 

*  any  grants  or  warrants  they  ever  had  for  their 

<  lauds,  and  yet  have  been  long  and  quiet  pos« 

*  sessors  of  the  same,  and   bestowed   great 

*  charges  thereon.    And  whereas  the  acknow^ 

*  ledgment  of  40  pounds  of  cotton  per  bead, 

*  and  other  taxes  and  compositions  formerly 

*  raised  to  the  earl  of  Carlisle  was  held  very 
'  heavy.    For  a  full  remedy  for  all  the  defects 

*  afore  related,  and  quieting  the  possessions, 

*  and  settling  the  tenures  of  the  inbabitanta  of 

*  this  island,  be  it  enacted  by  his  excellency 

*  Francis,   lord  Willoughby  of  Parham,  and 

*  his  council,  and  gentlemen  of  the  assembly, 

*  and  by  the  authority  of  the  same,  that,  aot- 

*  withstanding  the  defects  afore  related,  all  the 

*  now  rightful  possessors  of  lands,  tenements 

*  and  hereditaments,  within  this  island,  acoord- 

*  ing  to  the  laws  and  customs  thereof,  may  at 
'  all  times  repair  unto  his  excellency  for  the 
'  full  confirmation  of  their  estates  and  tenuref, 

*  and  then  and  there  shall  and  may  receive 

*  such  full  confirmation  and  assurance,  under 

*  his  majesty's  great  seal  for  this  island,  as 

*  they  can  reasonably  advise  or  desire,  accord- 
'  ing  to  the  true  intent  and  meaning  of  this  act. 

**  *  And  be  it  farther  enacted,  by  the  authority 
'  aforesaid,  that  all  and  every  the  payments  of 

*  40  pounds  of  cotton  per  head,  and  all  other 
'  duties,  rents,  and  arreai  s  of  rents,  which  have 

*  or  might  have  lieen  levied,  he  from  henceforth 
'  absolutely  and  fully  released  and  made  void  ; 
'  and  that  the  inhabitants  of  this  island  have 
'  and  hold  their  several  plantations  to  them  end 
'  their  heirs  for  ever,  in  free  and  common  soc- 
'  cage.     Yielding  and  paying,  therefore,  at  the 

*  feast  of  St.  Michael  every  year,  if  the  same 

*  shall  l>e  lawfully  demanded,  one  ear  of  Lidiao 

*  €M>rn,  to  his  majesty,  his  heirs  and  successors 

*  fur  ever,  in  full  and  free  discharge  of  all  rente 

*  and  services  for  the  future,  in  consideration  of 

*  the  release  of  the  said  40  pounds,  end  in  con* 
'  sideration  of  the  confirmatioo  of  ell 
'  this  island,  as  aforesaid,  end  in 
'  meot  of  hie  majesty'e  sreoe  mad  .i^ 
'  sending  to  end  enooiel' 

*  eicelleiieT.  of  v 


Ca>»p6e/l  V.  Halt. 

net.  Ui<I  do  reat  man  nwarH  lliercar 

111  (iiruinuc)i  aa  nnthing^caiiilucelh  more 

«  Bod  pTas|)crity  ol'  >ny  jilBCi-,  nnil 

i<io  of  errrj  txti^Xc  jicrson  lliereio, 

be  public  revenue  tlieteiit*  may  hf 

ieMur«  [iru^rtinned  lo  the  public 

s  aod  expeiu^es ;  and  bIsa  well  wel^ih- 

[be  great  ch»r^;«s  Ihat  lli^re  miisl  be  of 

'  til]'  IB  the  malnliiiniiiif  the  honour  and 

y  of  bit  niaJMly's  aiiilinrity  bere ;  ihe 

le  meeting  i>l  ibe  ivsiiunii ;  tbe  oixfti  at- 

T  ot'thccauucil ;  ibf  re|iarationorihe 

lb«  buililiDff  a  sessionB-  haute  and  a 

1    aad  all  other  public  cbargea  Jnciim- 

'«gA«eriiiiienl;  do,  in  conaideralioD 

ite  and  grant  unto  his  majesly,  hia 

'   dniire    your    excellency   10    accept 
ir  ^rauU :  and  wc  bniiibly  pray  your 

J'  ibal  It  luay  be  enaclnl,  and  he  ll 
J  hia  excellency  Francis,  Inril  VVil- 
J  if  Parham.    captain    eeoeral    and 
rnnr  or  this  island  ol'  Barbndocs, 
^^___  !t  the  Carribbee  ialnnds,  and  by  and 

■  oiah  Ibe  cunieot  of  ibc  council,  and  the  gea- 
■  '-'"«! 'if  ibe  oa*emhly,repr«reiilatiresof'lliig 
iUnd,  and  by  authority  of  the  tame,  that  an 
.>l<Di(  or  cuttom  be,  I'rnm  and  aflcr  publica- 
'  n  herrot',  rained  iipi>n  the  native  comrandi- 
11  uf  ihiti  inland,  alter  Ibe  pro|K>riii>ng  and  iri 
.  -iiiat!!  and  form  as  is  heteuniT  «et  down  nnd 
.^'g>oiotrd,  llialia  loaay,  upi>n  all  dead  oim- 
.xliiiM  of  ibe  ffrowih  nr  produce  of  Ibis 
land,  tbat  (hall  he  Hbipped  nff  ' 


'  |>aid  t 


if  catcreiftn  liird  the  king,  bia 


id  a  half 


I     lj<    inmrs  albreaaid,  upnn  their  oatha 

.iiIkt  My.  that,  hy  on  act  of  aa< 

:   '  iilaod  of  Si.  Christopher,  in  tbe 

I'liaavd  in  tbe  said  island,  in  tbe 

l-uid   1737,  intitled,  <  An  Act  lo 

i;i>ods  and   commodiliea  of  the 

<<  [iiiHluoe  uf  Ihe  late  Frencb  part 

<     ^  <<i'l  fit  Hi.  Climtnpber,  nbirb  ar«  or 

••■;  11-  •liippeil  olT  from  Ihe  snid  island,  lo 

K  iwymanl  of  ihc  four  and  n  half  ]ier  cent. 

M«,  Mit  lu  aaoertain  di  nhat  places  all  ihe 

■to  of  four  and  a  hulf  per  cent,  sbull  be 

*  ll  ia,  BiDangut  other  ihinfft,  recited  and 
idHl  BB  followB ;  ■  tVherena  id  and  hyan  act 
r  ntulc  uf  the  i;eneml  couDcil  and  ^enernl 
■entity  of  ib«  Leeward  Carribbee  islands, 
catlnl  or  known  by  the  names  of 
r  Noil,  Ki.  Chrialnpher.  Antigita, 
1,  msdc!  in  or  about  tbe  var  of 
,  and  entitled.  An  Act  liir  ael- 
m  tbe  cumniudilles  of  tbe 
LcBward  Carribbtc  islands, 
enttoffl  of  four  puunds  and 
i»r»»wy  hntTdrcd  weight  of 


.  ni'lei 


ard« 


A.U.  1774.  [254 

'  snTereiga  lord  Cbarles  Ihe  9d,  then  king  of 
England.  Scotland,  France,  and  Ireland,  and 
to  his  heirs  nnd  succennra  for  erer.  aa  in  and 
by  Ibf  same  act  or  slatule,  relation  being 
Ihereunlo  had,  may  more  fully  and  at  large 
appear.' 
"  <  And  uhrrcaa  aince  the  making  of  tbe  aaid 
'alatuieilowil.  inand  by  ibelatetrtalyorpeace 
'  and  friendship  concluded  at  Utrecht  helfteeo 
'  tbe  two  cronns  of  Great  Britain  and  France, 
'  an  enlire  ceasion  was  made  hy  tbe  moat  Chris- 
tian king  Lewis  tbe  14ih  to  our  Inle  sovereign 
■  lady  Anne,  queen  of  Great  Britain,  France, 
'  and  Ireland,  and  lo  her  crown  for  ever,  of  all 
Ihat  pan  of  the  island  of  St.  Christopher  for- 
merly belonging  In  the  crown  of  France ;  so 
tb  at  I  be  same  late  French  pari  of  tbeaaid  island 
'  of  Nl.Chrisiopber  is  now  become  parcel  of  ibe 
realm  of  Ureal  Britain,  and  is  under  the  anle 
dominion  and  goveramenl  of  tbe  crown  of  the 

'"  Andwherea»somedoubtshaTearisen,whe- 
'  Iher  ibe  said  Inie  French  pari,  so  yielded  np  bb 
'  afbresaiil  lothe  said  crown  of  Great  Britain,  be 
'  subject  in  the  payment  of  ihe  afor^aid  duties 
I  of  four  and  a  haif  per  cent,  so  as  aforeaaid,  in 
and  by  the  said  reciled  act,  given  and  gi-anleil 
'  lo  our  aaid  late  sorereisn  lord  king  Charles 
the  ad.  hia  heirs  and  successors  ;  fur  avoid- 
ing, tlierefure,  all  disputes  and  conlroversiei 
ivbicb  may  for  ihe  future  arise  within  th« 
samo  island,  touching  or  concerning  ilie  pay- 
ment of  the  same  duties,  we,  your  majealy'a 
'  most  dutiful  and  loyal  subjecis  John  Hart, 
'  esr|.  your  majesty's  captain  general,  and  go- 
'  vernnr  in  chief  of  all  your  majesty's  Leeward 
'  Carrjhbce  islands  in  America,  and  Ihe  council 
and  assembly  of  tbe  said  island  of  Si.  Chris- 
lopber,  do  humbly  beseech  your  iDa}esty  that 
it  miy  he  eoacled  and  declared,  and  it  is  here- 
'  by  enacted  and  declared,  by  the  king's  moat 
'  excellent  majesty,  by  aud  with  tbe  advice  anil 
consent  of  the  captain  general  and  gnvernor 
inchit^of  ihesaid  Leeward  Carribbee  island*, 
in  America,  and  the  council  and  assembly  of 
the  said  island  ofSt.Cbrialopber.and  hy  the 
'  suibority  of  the  same,  Ibal  all  and  aingutar 
Ibe  goods  and  commodities  of  the  growth  and 
'  pi-nduce  of  the  said  lale  Frencb  part  of  tba 
said  ialand  of  St.  Christnpber,  and  which  at 
'  ibia  time  are,  or  hereafter  aball  be,  shipped 
'  off  from  tbence,  in  order  to  be  carried  lo  any 
'  Dlbei  port  or  place  whalsoeTer,  ore,  and  for 
'  ever  alttr  shall  be,  subject  and  tiablr,  and  the 
same  goods  and  commodities,  and  every  of 
'  them,  are  hereby  made  auhject  and  liable,  to 
'  Ihe  payment  of  tbe  afnressid  duties  and  cua- 
'  torn 9  uf  lour  pounds  and  half  a  pound  per 
'  cent,  in  specie,  lo  your  most  aacred  niaiesty, 
'  your  heirv  and  successors,  in  such  maimer 
'  and  sort  aa  Ihe  goods  and  commoililiei  of  the 
'  growtli  and  produce  of  Ihat  part  uf  tbe  said 
'  island  known  and  calle<l  hy  tbe  name  of  Ihe 
'  English  part  thereof,  have  beretotiire  and 
'  bilberio  been  subjecleil  and  linhle  unlo  by 
force  and  virtue  of  llie  aliovu  reriled  act  or 


15  GEORGE  III.  The  Case  of  the  Island  of  Grenada^         [S56 

*  pointed  :  that  is  to  my,  Qpwi  all  commodilktf 

*  of  the  growth  or  production  of  this  ialaiid  tbtt 
'  shall  be  shipped  oflTthe  same,  aball  bejpud  to 

<  our  soveretii^n  lord  the  kmgf,  hia  beirt  and 

<  miccessors  for  e? er,  four  and  a  half  in  ipccie 

*  for  every  [fiye]  score.' 
"  And  the  jurors  aforesaid,  upon  their  oaths 

aforesaid,  farther  say,  that  by  an  act  of  at*' 
sembly  of  the  islatMl  of  AMiffoa,  in  the  West 
Indies,  passed  io  the  said  island  on  the  19th 
of  May,  in  the  year  of  our  Lord  1668,  en-' 
titled,  '*  An  Act  for  the  settlement  of  the  cos-' 

*  toDi  or  duty  of  four  aad  a  half  per  eeot,'  it 
is,  anoooKBt  other  things,  recited  and  enacted' 
as  folloivs:  '  Whereas  by  reason  of  the  late 
'  unhappy  war  which  arose  betwixt  bit  royal 

<  nnjesty  Charles  the  second,  king  of  Great 

<  Britain,  Franoe,  and  Ireland,  dec.  and  the 

<  moot  Christian  kioff,  in  Prance,  as  wcM  ai' 
'  the  states  general  of  the  United  NetherlHds«' 

*  sereral  of  his  majesty  of  Great  Britain  hb 
'  territories  on  this  side  the  tropic,  became  mlK 

*  ject  (through  conquest)  unto  the  said  Frencli 

*  king  and  his  sabjects ;   and,  amongst  others, 

*  this  island  of  Antigua  also  waa  so  sohdeeii' 
'  by  Monsieur  de  Labarr,  lieutenant  general  bf 

*  sea  and  laad  to  the  said  French  king,  being  as- 

*  sisted  by  the  Cannibal  Indians ;  by  mcanr 
'  whereof  all  the  lands  within  this  island  be-' 

*  came  forfeited  unto  his  majesty,  &e.  as  bj  an 

*  act  of  this  country,  bearing  date  the  10th 

*  day  of  April  lant  past  (reference  being  there- 

*  onto  had)  may  more  at  large  appear.  Knoir 
*ye,  that  for  and  in  conmderation  of  newgrantr 
'  and  confirmation  of  our  said  Imids,  um&r  tto 

*  groat  seal  appointed  for  Barbadoes,  and  the 

*  rest  of  the  Carribbee  islands  bv  lits  exceHencj 

*  lord  Willoughhy  of  Farham,'(Sec.  we  do  give* 

*  and  grant  to  his  said  majesty,  his  heirs  and 

*  succesBom  for  erer,  and  most  humbly  desire 

*  your  excellency  to  accept  these  our  grants : 
'  and   we  do  humbly  pray  your  excellency 

*  that  it  may  be  enacted,  and  be  it  enacted,  by 

<  his  excellency  lord  Willougliby  of  Farhant' 
'  captain  general  and  chief  eni^mor  of  Bar- 

*  badoes,  and  the  rest  of  the  Carribbee  iaiandi, 

*  and  by  and  with  the  advice  and  cousent  of  the 

*  council,  and  gentlemen  of  the  assembly,  re-' 
'  presentatives  of  this  island,  and  by  tM  an- 

*  tiiority  of  the  same,  that  an  impost  or  enstem 

*  l)e,  from  and  after  the  publication   hereof, 

*  raised  upon  the  native  cooNnodities  of  this 

*  island,  after  the  proportion  and  in  manner 

*  and  fiirm  as  above  set  down,  that  is  to  say i 

*  u|ion  all  commodities  of  the  growth  or  pro- 

*  duction  of  this  island,  that  shall  be  shipped 

*  off  the  same,  shall  be  paid  to  our  sovetviga 

*  lord  the  king  his  heirs  and  successors  rar 

*  ever,  four  and  a  half  in  specie  for  every  five 
*8core.' 

**  And  the  jurors  aforesaid,  upon  their 
aforesaid,   farther  say,  that  a  cuatoB 
was  established  in  the  said  island  of  Ofif" 
and  proper  officers  aptninted  tiiiieiB 

«'  And  the  juren  afai— ^■' 
afofesaid,  fhratrsa-^ 


S55] 

««  And  the  jurors  aforesaid,  upon  their  oatiis 
aforesaid,  farther  say,  thai  by  an  act  of  assem- 
bly of  the  island  of  Nevis,  in  the  West  Indies, 
passed  in  the  said  island  in  the  year  of  our 
Lord  1664,  entitled,  *  An  Act  for  settling  an 

*  impost  on  tlie  commodities  of  the  growth  of 

*  this  island,'  it  ia,  amongst  other  things,  re- 
oited  and  enacted  aa  fbltows: 

<<  •  Wliereaa  our  late  sovcreij§^  lord  Charles 
«  the  1st,  of  blessed  memory,  d^,  by  his  letters 

*  patent  nnder  the  great  seal  of  England,  grant 
«  and  convev  unto  James,  earl  of  Carlisle,  and 

<  bis  heirs  ror  ever,  the  propriety  of  this  isUind 

<  of  Nevis ;  and  his  sacred  majeat^  that  now  is 

*  having  by  pnrchase  invested  himself  in  all 

*  the  rights  of  the  said  carl  of  Carlisle,  and  in 

<  all  other  rigfhta  which  any  other  person  may 

<  clahn  from  that  patent,  or  any  other,  and 
« thereby  more   immediately  hath    [having] 

*  taken  this  island  and  the  rest  of  the  Carribbee 

*  islands  into  his  royal  protection :  and  his  most 

*  excellent  majesty  having,  by  letters  patent 

<  under  the  great  seal  of  Mgland,  bearing  date 

*  the  19th  da^  of  June,  in  the  15th  year  of  hie 

*  reign,  appoinled  his  excellency  Francis,  k>rd 

<  Willoughby  of  Parbam,  captain  general  and 

<  chief  governor  of  Barbadoes,  and  the  rest  of 

<  the  Carribbee  islands,  with  foil  power  and 

*  aothority  to  irrant,  confirm,  and  assure  to  the 

<  inhabitantB  or  the  same,  and  their  h«rs  for 

*  ever,  alt  lands,  tenements,  and  hereditaments, 

*  under  his  majesty's  seal  appointed  for  Barba^- 

<  does,  and  the  rest  of  the  Carribbee  islands,  as, 

*  relatinn  being  thereunto  had,  may  and  doth 
'  more  at  large  appear. 

«*  *  And  whereas,  by  virtue  of  the  said  earl 
^  of  Carlisle's   patent,  divers  governors  and 

<  agents  have  been  sent  over  hither  with  ao- 

<  thority  to  lay  out,  set,  grant,  or  convey  in 

*  parcels  the  land  within  this  island,  to  such 

*  persona  as  they  should  think  fit,  which  was 

*  by  them,  in  thenr  respective  tinnes,  as  much 

<  as  in  tliem  lay,  accordingly  performed.  And 
«  whereas  many  have  loot  their  grants,  war- 
«  rants,  or  other  evidences  for  their  said  lands ; 

<  and  others,  by  reason  of  the  ignorance  of 
« those  timea,  want  sufficient  and  lawful  words 

*  to  create  iehcritanoes  in  them  and  their  heirs; 

<  and  otiiers  that  never  recorded  thehr  grants 

*  and  warrants ;  and  others  that  can  make  no 

<  proof  of  aay  grante  or  warrants  they  ever 

<  bad  for  their  lands,  and  yet  have  been  long 

*  and  quiet  possessors  of  the  same,  and  be- 

*  stowed  great  charv[es  thereon.  And  we  do 
«  humbly  pray  your  excellency  that  it  might 
'  be  enacted,  and  be  it  enacted,  by  his  exwl- 

*  lency  Francis,  lord  Willoughby  of  Parbam, 

*  captain  general  and  chief  governor  of  the 

<  islanil  of  Barbadoes,  and  the  rest  of  tlie  Car- 
«  ribbee  islands,  and  by  and  with  the  advice  and 

*  consent  of  the  council  and  gentlemen  of  the 

<  assembly,  representatives  of  this  island,  and 
«  by  the  authority  of  the  same,  that  an  impost 

<  or  custom  be.  from  and  after  the  publication 
«  hereof,  raised  upon  the  native  commodities  of 

*  tbia  isUnd,  afVer  the  pro|>ortion  and  in  manner 

*  and  form  as  is  hereafter  set  down  and  ap- 


&7] 


Campbell  9.  HidL 


A.  D.  1774. 


[95» 


Bhtaia,  oa  Ibe  third  day  of  March,  1763,  uur- 
chised  «  ccttain  plantaiion  in  the  said  island 
of  Grmada,  of  the  French  iohahitants,  in  pur- 
fuaoee  of  the  said  articles  of  capikulatioo,  and 
•f  the  said  treaty  of  peace,  as  many  other 
BhtUh  subjects  had  then,  and  since  have,  done. 

**  Aod  tlic  jurors  aforesaid,  a|)on  their  oaths 
Araaaid,  farther  say,  that  certain  sugars  of 
ike  phiatilTs,  and  of  the  growth  and  produce 
•f  the  said  island  of  Grenada,  and  made  from 
4*  Ike  itiaintifrs  said  plantation  there,  sulise- 
faeat  to  the  granting  and  registering  of  the 
UkJ  letters  patent  of  the  SOth  of  July,  1764, 
■ere  exported  from  thence.  And  Ithat  the 
■onici  IB  the  declaration  mentioned  to  he  had 
mi  reoeiferi  by  the  defendant  to  the  plaintifTs 
BR,  were  paid  to  and  received  by  the  said 
WiHiam  Hall,  in  the  said  island  of  Grenada, 
IS  afciesaiil,  as  and  fur  the  duly  oFl'our  and 
a  balf  per  cent,  imposed  by  the  said  letters 
ptratoi'  the  30th  of  July,  1764,  he,  the  said 
Williaa  liall,  being  then  aud  there  the  col- 
keior  ol*  the  said  duty,  for  the  use  of  his  ma- 
jcrty.  And  that  the  said  William  Hall  hath 
ist  paid  the  same  over  tu  the  use  of  his  ma- 
JM^  ;  but,  on  notice  ol  this  action  intended  to 
he  mvght,  hmh,  by  and  with  the  consent  of 
bis  tjfsty's  atlui  ney  general,  kept  the  same 
■  bia  bands,  for  the  purpose  of  trying  the 
^nrttisn  arising  upon  the  mcts ;  and  lor  which 
Ibis  action  is  bniusrht. 

**  But  whether  upon  the  whole  matter  afore- 
■ii,  found  by  the  said  jurors,  in  manner  afore- 
Hid,  ibi?  said  impost  or  custom  of  four  and 
•se  hall'  per  cent,  in  s|>ecie,  fur  and  upon  all 
kai  commodities  of  the  growth  or  produce 
rf  ibe  said  island  of  Grenada  shipped  off  for 
AssBine,  was  lawfully  imposed  or  not,  the  said 
jfltia  am  altogether  isnorani,  and  pray  the  ad* 
lise  of  the  Court  in  the  premisses. 

"  And  if,  upon  the  wliole  matter  afurcMid, 
lend  by  the  said  jurors,  in  manner  aforesaid, 
it  Aafl  appear  to  the  Court  here  that  the  said 
JBpaat  or  custom  of  four  and  a  half  per  cent. 
is  ipecie  of  and  upon  all  dead  commodities  of 
tW  growth  or  produce  of  the  said  island  of 
Gienada  shipped  off  from  the  same,  was  not 
bvfoUy  imposed,  then  the  said  jurors,  upon 
Ibeir  oaiha  say,  that  the  said  William  UaU  dkl 
mitttakm  and  promise,  in  nunner  and  form 
M  ibe  said  Alexander  Campbell,  by  his  said 
dsdaraiioo,  baib  declared  agaio*4  bim ;  and 
ibcy  8»eas  the  damages  of  tM  said  Alexander 
•a  that  occasion,  besides  bii  cntu  and  charges 
Isid  omt  b^  hiio  about  bis  suit  in  tKi«  behalf, 
Is  5/.  and  tor  such  c^ts  and  charges  40j. 

**  Bat  if,  uiKMi  the  » tio!e  ma  iter  found  by 
ibe  Mid  jurors,  it  ai^pe'^r  to  ihe  Court  here, 
that  Uie  said  impost  or  coii!orti  f^f  Vmu  and  a 
kaf  per  ceol.  in  specie  of  zui  opoo  all  dead 
of  the  ;;roiiih  or  cr^nltic?  ol  tbe 
of  Grenada,  SMip(*cd  off  from  the 
lawfuil%  imposed,  then  the  said 
tbcir'oaiba,  say,  that  the  said 
dfal  Bol  promise  and  ooderuke 
V  mdhtm  m  in  bis  pica aUcdgad." 


m 


This  came  was  first  argued  for  the  plaintiff 
by  Mr.  Alleyne,  upon  tlie  above  special  verdict, 
in  Easter  term,  1774,  in  substance  nearly  to 
the  effect  following. 

Mr.  dikyni^^My  lords,  if  the  wishes  of  go- 
vemment,  ur  professional  rank,  could  influenco 
the  decisions  of  this  tribunal,  1  should  now, 
considering  the  cause,  and  the  dignity  of  those 
advocalea  who  support  it  against  me,  adopt 
the  example  of  the  Roman  or^itor,  and  begin 
witli  recommending  my  client  to  tbe  grace  and 
protection  of  his  judges ;  but  experience  bar- 
ing taught  me  that  here  the  genuine  merits  of 
a  cause  are  the  judicial  guide,  1  gladly  follo«r 
the  practiee  of  an  English  court,  where  the 
laws  are  heard  by  their  own  recommendation ^ 
and  rise  in  humble  confidence,  of  counsel  witb 
the  nUiotiff,  who,  through  me,  aolicils  }'Ottr 
lordships'  justice  in  hio  behalf. 

This  long  expected  and  truly  interesting 
cause  now  comes  before  the  Court  upon  a  spe- 
cial verdict,  found  at  the  trial  of  the  general 
issue  before  your  lordship,  on  an  action  of 
*  indebitatus  assumpsit;*  nominally,  indeed, 
brought  for  the  recovery  of  an  inconsiderabi* 
sum  of  money ;  but  substantially,  to  take  tbo 
opinioo  of  your  lordships  upon  a  question  of  the 
first  magnitude.  The  verdict,  when  relieved 
from  tbe  embarrasament  of  form,  reaolvea  it- 
self into  tbe  following  case. 

The  conquest  of  the  island  of  Grenada,  in 
the  West  Indies,  was  one  among  the  mwny 
gk»rious  achievemeiita  of  tbe  last  war.  It  wao 
surrendered  to  the  troops  of  bis  Britannic  fDa* 
jesty,  under  general  Moocktoa,  on  tbe  7tb  of 
Pebroary,  1769. 

Tbe  articles  under  which  it  eapitnfaled  ac- 
knowledge the  inhabitants  from  thenceforth  as 
Brilish  subjects ;  require  them  to  uke  the  oath 
of  altegianoe,  as  a  redprocal  doty  resulting 
from  their  adoption  as  sucii ;  secure  to  them 
the  enjoyment  of  their  religion ;  assore  ibi-m 
of  protection,  in  tbe  same  manner  as  the  colo- 
nies receive  it ;  with  whom,  by  this  surrender, 
and  tbe  cenwquent  reception  into  the  privi- 
leges of  British  sulgeds,  they  are  placed  upon 
an  equal  foot  in  the  possession  of  the  common 
libertT ;  and  permit  them  to  dispose  of  their 
own  lands,  provided  it  be  to  Britirii  subjects. 

On  the  general  traaty  of  peace,  signed  at 
Pteis,  Fcbroary  the  lOtb,  1763,  this  island  was 
ceded  by  bis  Christian  nMJesty,  in  full  right, 
to  tbe  crown  of  England,  under  stipulations 
similar  to  those  on  which  tbe  province  of  Ca- 
nada waa  ceded ;  and  in  general  confirmatory 
of  the  articles  of  capitoUtion.  And  in  this 
irsaty  his  majesty  engages,  in  tbe  roost  ample 
manner,  for  the' free  exerdse  of  tbe  Koman 
Catholic  religion ;  aud  giv«s  hi«  French  sub- 
jects liberty  to  sell  their  goods  and  retire. 

On  tbe  7  th  of  October  foUowinir  hi«  majestyp 
to  make  gof^d,  in  the  fullest  manriir,  tiiow;  en- 
gagements, upon  the  faith  of  which  iIm  isUnd 
bad  surrendered,  and  to  p«rf«ir«  at  tbe  same 
liose  tbe  oonditioos  of  tbe  treaty  of  pf  a',  e,  bod 
fanhcr^  with  »  view  to  tbe  better  pesplin;  and 

8 


S59] 


15  GEORGE  IIL  The  Que  of  the  Island  qfGrenadi 


caltiffttingf  of  bis  said  island,  was  pleased  to 
issue  his  royal  proclamation,  inviting  nis  Britiiib 
subjects  to  colonize  in  his  new  acqnired  domi- 
nions, and,  as  an  encouragement,  assuring 
them  and  the  inhabitants  in  general  already 
there,  of  the  benefit  of  the  English  laws  and 
constitution :  and,  for  that  purpose,  declares  to 
this  efiect;  reciting  that  it  will  greatl;^  con- 
tribute to  the  speedF  settling  of  his  said  new 
gOTfrnments,  tnat  his  loving  subjects  should 
be  informed  of  his  paternal  care  tor  the  secu- 
rity of  those  in  their  liberties  and  properties 
who  were  or  should  become  inhabitants  there- 
of ;  and  farther,  for  the  effectuating  of  such 
intent,  **  We  have  thought  fit  to  publish  and 
declare  by  this  our  proclamation,  that  we 
have,  in  our  letters  patent  under  our  great 
seal  of  Great  Britain,  by  which  the  said  go- 
vernments are  constituted,  given  express  power 
and  direction  to  our  governors  of  our  said  co- 
lonies respectively,  that  so  soon  as  the  state 
and  circumstances  of  the  said  colonies  will 
admit,  they  shall,  with  the  advice  and  con- 
sent of  the  members  of  pur  council,  summon 
and  call  general  assemblies  within  the  said 
governments  respectively,  in  such  manner 
and  form  as  in  those  colonies  and  provinces 
in  America  which  are  under  our  immediate 
government'* 

Having  thus  declared  his  resolution  to  exe- 
cute the  engagement  in  their  favour  by  this 
first  step,  as  early  as  possible,  of  calling  as- 
semblies as  in  the  colonies  and  provinces  in 
America,  under  his  particular  protection,  and 
his  inclination  and  desire  to  manifest  his  pater- 
nal care  of  his  subjects ;  he  proceeds  to  shew 
the  extent  and  justness  of  the  accomplishment 
of  his  design,  by  a  full  and  particular  declara- 
tion of  the  nature,  powers  and  design  of  these 
assemblies  when  called,  by  adding :  *<  and  we 
have  also  given  power  to  the  said  governors, 
with  the  consent  of  our  said  councils  and  the 
representatives  of  the  people  so  to  be  sum- 
moned as  aforesaid,  to  make,  constitute  and 
appoint  laws,  statutes  and  ordinances,  for  the 
public  peace,  welfare  and  good  government  of 
our  said  colonies,  and  of  the  people  and  inha- 
bitants tliereof,  as  near  as  may  be  agreeable  to 
the  lawsof  Enghmd.**  Here  tfien  they  saw  the 
full  idea  of  their  becoming  British  subjects 
(which  they  became  at  the  surrender)  by  this 
clear  and  perfect  image  of  the  beauty,  order, 
and  freedom  of  the  British  constitution,  im- 
parted to  them,  and  declared  to  be  the  model 
and  foundation  of  their  own.  ' 

But  as  it  might  happen  that  this  benefit, 
thus  pledged  and  confirmed  to  them,  could  not 
be  immediately  communicated  in  its  full  ex- 
tent ;  his  majesty  provides  thos ;  **  in  the  mean 
time,  and  until  such  assemblies  can  be  called, 
all  persons  inhabiting,  or  resorting  to,  our  said 
colonies,  may  confide  in  our  royal  protection, 
for  the  enjoyment  of  the  benefit  of  the  laws  of 
our  realm  of  England.*'  So  that  the  enjoy- 
ment of  these  laws  was  to  anticipate  even  the 
calling  of  the  assemblies  $  which  was  not  to  be 
a  eoanaencemtat  jpf  Ihur  frtedooy  nor  of  their 


[9B0 

exercise  of  the  ri|^ts  of  Britisb  sokgecta,  nor 
of  their  participation  in  the  British  comtitu- 
tion;  but  one  act,  most  important  and  illus- 
trious indeed,  of  that  freedom,  those  rights, 
and  that  constitution  already  in  their  poi* 
session. 

And  it  is  material  to  conaider  what  is  the  firrt 
step  which  the  governor  is  to  take  upon  his  ar- 
rival in  the  island,  for  the  purpose  before  ex- 
pressed, of  giving  the  inhabitants  the  benefit  of 
the  laws  of  England.  It  follows  iromediatelyy 
'*  We  have  given  power  under  our  great  seal  to 
our  governors  of  our  said  colonies  respectively, 
to  erect  and  constitute,  with  the  advice  of  our 
said  councils  respectively,  courts  of  judicature, 
and  public  justice  within  our  said  colonies,  for 
the  hearing  and  determining  all  causes,  as  well 
criminal  and  civil,  according  to  law  and  equity  | 
and  as  near  as  may  be  agreeable  to  the  laws  of 
EngUnd." 

Here  then  the  laws  of  liberty  and  of  Eng- 
land are  enthroned  in  the  island  as  soon  as  ever 
the  delegate  of  the  executive  powers  arrives 
there,  and  he  is  sent  to  give  them  efled 
amongst  tliose  who  were  already  entitled  to 
them  as  British  subjects,  and  both  in  criminal 
and  civil  causes,  both  in  strict  law  and  liberal 
equity  ;  in  the  whole,  and  in  the  great  mem- 
bers and  distinguishing  distributions,  both  in 
the  objects  and  the  manner  of  spplying  them, 
the  laws  of  our  constitution,  the  laws  of  Eng- 
land are  to  prevail,  and,  as  near  as  may  be  con- 
sistent witli  local  circumstances,  are  to  bo  en- 
joyed as  the  general  privilege  of  British  sub- 
jects, there  as  bere. 

Conformably  to  these  repeated  acts,  and  in 
prosecution  of  the  same  intention,  on  the  S6lh 
of  March  1764,  a  second  proclaoMtion  was  in- 
sued  ;  having  the  same  object,  the  establishment 
of  the  colonies,  and  declaring  the  same  views 
already  wisely  adopted,  and  firmly  engaged  as 
to  the  means  of  attaining  and  perpetuating  that 
establishment ;  and  reciting  the  great  Mnefit 
which  will  arise  to  the  commerce  of  the  king- 
dom, and  to  his  majesty's  subjects  in  general, 
from  a  speedy  settlement  of  the  new  acquired 
islands,  of  which  this  of  Grenada  is  named  the 
first.  It  gives  directions  for  the  survey  of  thn 
lands,  the  distribution  into  districts  and  parisbeiy 
analogous  to  the  English  divisions,  the  cultuin 
of  the  various  produce  of  the  country,  the  ap- 
portionment of  the  ground  into  due  lots  Ibr  thnt 
purpose ;  and  in  general  recognizes  the  inhabi- 
tants as  his  majesty's  loving  subjects,  and  pro* 
vides  such  means  as  were  judged  expedient  for 
their  necessary  support  and  defence,  their  in- 
temal  order,  plenty  and  happiness,  previous  to 
the  completion  of  tbese  by  the  ei\)oyment  of  tho 
laws  of  England,  which,  as  they  bad  in  righ^ 
they  were  to  have  speedily  in  possession. 

In  further  prosecution  of  this  design  OD'IIm 
9th  of  April  1764,  his  majesty  was  pleased  io 
grant  his  royal  letters  patent  to  general  Mel- 
ville, constituting  him  captain-general  and  go- 
vernor of  the  new  islands,  Grenada,  the  Orean- 
dines,  Dominica,  St.  Vincent,  and  Tobago. 

Thii  patent  is  set  forth  verbatim  in  tho  rt^ 


Campbell  v.  Hall. 


»  10  uke  KDi]  BilmLoiiler  (be  oaths  of  allpsi- 
uw  kod  sunivroiicy ;  ^reii  outliority  to  tlie 
fiWBOT,  and  rwjuires  anJ  oomniinds  liiiu  to 
munoti  an  amemtily,  <lMcril>es  the  manlier  of 
teliMi  by   the  freehoUers,   and  Iha9  called 

a>rs  loiit  ur«pre»eniatiT«i;  and  (0);Hher 
lh«  |[«*mior  and  euuntil  lo  be  the  l^ia- 
hnMoflbecDutilfv,  and  lo  make  laws  aa  Dear 
n  poMiUe  to  tlie  [■»i  of  England,  nilh  the 
Mual  (iTOviuoa  lliat  ihey  shall  be  roid  if  nol 
aftawMl  by  hia  Rinjetly  within  a  limited  lime; 
m4  Iiarc4ty  ii  Aoatly  egUblishnl  in  Grenada  a 
I— ililiilioo.  JD  priocipk  and  form,  in  the  de- 
rifn  of  the  wbule,  in  tbe  dUpoaiuon  of  the 
pana,  in  Iheir  reapeclite  runclions  and  joint 
MMMioa*,  on  exact  epilomc  of  (be  Briliah 
Mm  oT  goTemmenl :  yrt  a  conatilxlioa  nol 
pNn  by  Iba  paleiil,  but  uiily  lu  be  put  in  full 

Hitb  ibese  pov/m  bis  excellency  airifed  in 
Grcsada,  and  innantly  took  upon  bimaetf  the 
itoil Jiti  alioD  nf  the  ifovernmenl  ;  and  in  obe- 
fiwM  to  hu  commitaioii  called  an  assetiihty 
mt  opened   the   scene   of   legislatioa  in   tbe 

tin  tbe  .'0th  ofJuly  17U4,  poileriorin  point 
af  dale  lo  thtte  prncruaMlioDB  and  this  patent, 
luaoHjnly  by  bis  letters  pnlenl  under  tbe  g-reat 
wal.  rrcilin|[  an  impnal  of  four  pounds  aud  a 
ball' (II  apecie  fur  every  hundred  wei){ht  of  the 
o^wxlilies  of  tbe  erowth  of  ihe  iatamt  uf  Bar- 
Ui»n.  and  of  the  Leeward  Carribliee  iilaBda. 
ui.l  aail  payable  lo  bis  majeily  and  ilia  siicces- 
'  rt ;  recitinic  tbe  cession  of  (he  island  uf  Gre- 
.li,  bbJ  that  it  is  reasonable  and  rxpedient 
ii  llie  hke  dultea  sbould  take  place  there  as 
Iba  oallfT  suicar  islands,  iberefore  in  lieu  nf 


A.  D.  1774. 


[S6S 


.loutirtbciaidisland  to  the  French,  on  guoda 

■ '  pmtil  and  tmpnried.  imposes  ihe  above  duty 

!  t-itfr  sikI  ■  balf  per  ceul.  and  requires  the 

••niMiT  and  oSicers  nf  the  customs  lo  raise, 

^ett,  a«il  receite  it  to  his  majesty's  use- 

riiaa   trltert  patent   were  July  registered 

lail  publicly  onnonnceil  by  his  excellency  the 

|*>(n«r  in  Jan.   1TA5.     A  rustom-hnuse  was 

mmitAt  officen  appointed  tu  act  ns  colleclora 

rf  lh»  CMloma,  ainou)^!  whom  the  defendant 

flaiiiill  tliaii  li  anil  II  linm  iii  1 1  ml  ofhisma- 
jan*a  M^i>cta,  imlucnt  by  ibe  royal  promises 
»|nfB*Ml]F  inade,  resorted  to  Grenada  and 
Wmw  pnrdiaaeni  of  lands  therein.  Amongat 
•e  firat  vf  whom  was  Alexunder  Campbell, 
praaeol  plaiuiifT;  whose  plonUtions 
,  and  he  wah  about  to  ship  off  his 
hr  islaml  of  Grenada  tu  the  Lon- 
nhrn  he  was  inlerrnpled  by  the 
I*  paymeni  of  tbe  im- 
■laled ;  ihe  jury  lind  he  jiaid  it, 
B  is  (be  money  on  which  the 
:  Ihe  verdict  concludes  ii 
d  liates  to  tlie  Court  i 
laor  Ibe  ca»e  tbe  impoat  be 


[Lord  ManiJiilJ  here  reminded  Mr.  At- 
leyne,  ihal  he  bad  oinitleil  Ihiit  part  of  tbarer- 
ilict  which  linds  (hat  the  money  is  retained